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AN    E  S  S A Y 

ON    THE    LEAKNING    OF 

CONTINGENT  REMAINDERS 

AND 

EXECUTORY  DEVISES. 

By   CHAHLES   FEARNE,    Esq. 

BARRISTER    AT    LAW,    OF   THE    INNER    TEMPLE. 


FOURTH  AMERICAN,  FROM  THE  TENTH  LONDON  EDITION; 

CONTAINING    THE 

iaotcs,  Qtnsts.  nnti  other  fatter  atJt>et»  to  the  fovmcv  l^WiowB 
By    CHARLES    BUTLER,    Esq. 

OF    LINCOLN's-INN,    BARRISTER    AT    LAW. 
WITH    AN 

OEIGINAL  VIEW  or  EXECUTOEY   INTERESTS 

IN 

meal  nm  ^tvmnnl  5&voptvt^y 

COMPRISING 

THE  POINTS  DEDUCIBLE  FROM  THE  CASES  STATED  IN  THE 
TREATISE  OF  FEARNE, 

A3   WELL   AS   STATEMENTS    OF,    AND    THE    CONCLUSIONS   FROM, 

THREE    HUNDRED    ADDITIONAL    MODERN    CASES, 
TOGETHER  WITH  REFERENCES  TO  NUMEROUS  OTHER  DECISIONS, 

AND 

SO  CONNECTED  WITH  THE  TEXT  OF  FEARNE,  AS  TO  FORM 

A  BODY  OF  NOTES  THERETO. 

By  JOSIAH  W.  SMITH,  B.  C.  L. 

OF   LINCOL-N'S-INN,    BARRISTER    AT    LAW. 

IN  TWO  VOLUMES.— VOL.  IL 


PHILADELPHIA: 

ROBERT    II.    SMALL,    MINOR   STREET. 

1845. 


r 
m5 


AN 

ORIGINAL   VIEW 


OF 


EXECUTORY  INTERESTS 


IN 


REAL  AND  PERSONAL  PROPERTY, 

COMPRISINQ 

THE  POINTS  DEDUCIBLE  FROM  THE  CASES  STATED 
IN  THE  TREATISE  OF  FEARNE, 

AS    WELL    AS    STATEMENTS    OF,    AND    THE   CONCLUSIONS    FROM, 

THREE  HUNDRED  ADDITIONAL  MODERN  CASES. 

TOGETHER    WITH 

REFERENCES  TO  NUMEROUS  OTHER  DECISIONS, 

AND 

SO  CONNECTED  WITH  THE  TEXT  OF  FEARNE, 

AS    TO   FORM 

A  BODY  OF  NOTES  THERETO. 

BY  JOSIAH  W.  SMITH,  B.  C.  L. 

OF    LINCOLn'S-IN\,    BARRISTKR    AT    LAW. 


686808 


PHILADELPHIA  : 
PRINTED    BY    WM.    S.    MARTIEN. 


P HE FACE; 


In  submitting  the  following  Essay  to  the  indulgent  considera- 
tion of  the  profession,  it  may  be  proper  to  make  a  few  remarks, 
which  may  serve  at  once  to  explain  its  design,  and  to  put  the 
student  on  his  guard  against  the  mistakes  into  which,  in  the 
investigation  of  executory  interests,  he  is  liable  to  fall. 

It  may  be  safely  affirmed,  that  there  is  no  subject  in  the  whole 
range  of  legal  learning,  so  abstruse  as  the  learning  of  executory 
interests,  and  yet,  at  the  same  time,  none  more  practical  and 
useful. 

Notwithstanding  the  assistance  afforded  by  so  many  volumes 
of  ably  drawn  precedents,  an  accurate  knowled^^e  of  this  sub- 
ject is  highly  requisite  to  all  who  are  engaged  in  the  practice 
of  conveyancing.  This  is  evident  from  the  many  hundreds  of 
reported  cases  which  have  been  brought  before  the  courts,  in 
consequence  of  ignorance  or  imperfect  knowledge  on  the  part 
of  the  individuals  who  have  drawn  the  deeds  or  wills  to  which 
such  cases  have  related.  And  to  the  Bar,  whose  duty  it  is 
to  advise  upon  questions  of  property,  as  well  as  to  discuss  them 
in  court,  an  accurate  knowledge  of  this  branch  of  learning  is 
not  only  highly  requisite,  but  indispensably  and  constantly 
necessary. 

But,  however  requisite  or  necessary  it  always  has  been,  how 
few  could  reasonably  be  expected  to  have  attained  it!  We  are 
told  by  one  of  the  greatest  Judges  who  ever  hved,  that  such  is 
the  number  and  character  of  the  decisions  on  the  Rule  in  Shel- 
ley's case  and  its  kindred  topics  alone,  that  "  the  mind  is  over- 
powered by  their  multitude,  and  the  subtlety  of  the  distinctions 
between  them."t  And  yet  these  constitute  but  a  part,  and,  in 
their  own  nature,  by  no  means  the  most  difficult  part,  of  the 
subject  of  executory  interests. 

*  See  Preface  to  the  present  edition  of  Fearne,  in  the  First  Vohnuc. 
t  2  Bligh,  50. 


vi  PREFACE. 

In  the  cases  falling  ^^  itliin  the  scope  of  the  following  sheets, 
the  same  words  are  frequently  used  in  different  senses ;  some- 
times in  a  generic  sense,  at  other  times  in  a  specific  sense ; 
sometimes  in  the  primary  or  original  sense,  at  other  times  in  a 
derivative  or  secondary  sense.  Generic  terms  are  repeatedly 
used,  where  specific  terms  should  have  been  employed  ;  and 
sometimes  a  particular  species  of  executory  devises  or  uses  is 
spoken  of  as  if  it  included  the  whole  body  of  executory  limita- 
tions. Cases  essentially  dissimilar  to  each  other  are  often  im- 
properly classed  together;  while,  on  the  other  hand,  general 
principles  have  not  been  deduced,  where  it  was  possible,  though 
difficult,  to  deduce  them.  Rules  have  been  laid  down,  without 
the  necessary  qualifications.  Dicta  and  opinions  stand  in  real 
or  apparent  opposition  to  each  other  at  every  turn.  Cases  have 
been  frequently  decided  upon  the  authority  of  others  which  in 
reality  were  not  in  point,  or  otherwise  upon  wrong  grounds, 
even  where  they  have  been  rightly  decided.  Some  decisions 
are  really  at  variance  with  others ;  while  many  more  appear  to 
be  conflicting,  when  in  reality  they  admit  of  reconciliation. 
And  the  frequent  result  of  all  this  has  been,  that  the  student 
has  scarcely  ventured  to  attempt  to  gain  an  insight  into  such 
an  intricate  subject,  or  has  risen  from  a  consideration  of  it  with 
a  notion  that  he  had  mastered  its  difficulties,  when  in  truth  his 
head  has  only  been  filled  with  vague,  confused,  and  erroneous 
conceptions.  Practitioners,  and  sometimes  even  judicial  minds, 
have  been  the  victims  of  the  most  painful  perplexity,  and  have 
been  led  into  the  most  serious  mistakes :  and  points  which  would 
or  might  otherwise  have  been  set  at  rest  for  ever,  have  been  liti- 
gated again  and  again.  In  short,  a  general  and  most  baneful 
igriorance  has  prevailed^  ?vhich  the  vague7iess  and  endless  discre- 
pancies of  the  hooks,  have  rendered  inevitable  to  most  persons,  and 
excusable  in  all. 

The  absence  of  accurate  divisions  and  definitions  of  the  vari- 
ous kinds  of  interests,  conditions,  and  limitations,  has  been  at  once 
the  necessary  consequence,  and  the  most  prolific  source  of  the 
ignorance  and  misapprehension  that  have  so  generally  prevailed. 
It  has  been  the  necessary  conseciuence  of  that  ignorance  and 
misapprehension;  because,  it  is  impossible  accurately  to  divide 
and  define,  without  a  clear,  correct,  and  complete  view  of  the 
whole  subject.  And  it  has  been  the  most  prolific  source  of  tliat 
ignorance  and  misapprehension;  because,  accurate  divisions 
and  definitions  are  as  essential  for  the  assistance  of  the  student 
and  the  ])ractitioner,  in  this  abstruse^  and  intricate  subject,  as 


PREFACE.  vii 

are  the  definitions  ol'  the  several  parts  of  speech,  and  the  ar- 
rangement of  nouns  into  declensions,  and  verbs  into  moods  and 
tenses,  in  a  Greek  oramniar,  for  the  assistance  of  the  student  in 
classics:  and  the  state  of  perplexity  and  confusion  which  lias 
been  so  common,  in  regard  to  executory  interests,  has  been  as 
unavoidable  as  that  which  the  student  in  classics  would  ex- 
perience, if  he  were  to  plunge  at  once  into  the  most  difficult 
authors,  without  the  guidance  of  a  grammar. 

The  author  has  not"spccitically  pointed  out  the  passages  which 
might  be  adduced  in  illustration  of  the  foregoing  remarks.  To 
have  done  so,  would  have  swelled  oat  the  work  to  a  very  great 
bulk,  and  have  given  the  whole  of  it  a  censorious  complexion, 
utterly  repugnant  to  his  feelings.  In  some  few  cases,  it  has 
been  absolutely  necessary  to  point  out  particular  instances  of 
mistake  or  inadvertence  on  the  part  of  the  profound  Author,  and 
the  very  eminent  Editor  of  the  former  editions,  of  the  admirable 
Treatise  to  which  these  pages  are  subjoined.  But,  generally 
speaking,  he  has  avoided  so  disagreeable  a  task ;  and  he  has 
carefully  abstained  from  specifically  noticing  any  misapprehen- 
sion or  oversight  in  living  authors,  lest,  possibly,  he  might  be 
inflictinof  an  injury,  where  it  would  be  more  consonant  to  his 
inclinations  to  speak  in  terms  of  eulogy,  or,  if  he  were  able,  to 
lend  a  helping  hand. 

Under  these  circumstances,  the  design  of  the  following  Essay 
has  been,  to  divide  or  analytically  arrange  the  various  kinds  of 
interests,  conditions,  and  limitations,  in  such  a  way  as  to  exhibit 
their  intricate  variety  at  one  perspicuous  view; — to  frame  cor- 
rect definitions  of  them,  so  as  generally,  yet  clearly,  to  distin- 
guish them  from  each  other,  preparatory  to  an  examination  of 
those  special  cases  in  which  some  interests  must  be  particularly 
distinguished  from  others  that  are  apparently  identical  in  their 
nature ; — specifically  to  distinguish  between  these  interests,  and 
to  add  such  other  distinctions  upon  miscellaneous  points,  as 
might  seem  to  be  required,  by  means  of  precise  rules  and  pro- 
positions, sujiported  and  illustrated  by  abstracts  of  cases; — to 
point  out  the  grounds  and  reasons  of  the  several  distinctions ; — 
and  to  deduce  general  princijiles  from  ''a  crude  discordant 
mass"  of  decisions,  "  long  permitted  to  accumulate  in  silent  and 
indescribable  confusion;"'* — and  thus  to  give  a?i  accurate,  7vell- 
dc fined,  and  jHTspicnous  view  of  executori/  interests,  reconciling 
and  harmonizing,  to  the  utmost  possible  extent,  apparently  clash- 

*  IIuvcs  on  Limitations,  Introd.  p.  IS. 


viii  PREFACE. 

ing  cases,  jarring  dicta,  and  discordant  passages,  and  commend- 
ing itself  to  reason  and  the  analogy  of  law. 

Such  is  the  attempt  made  in  the  following  pages.  How  far 
it  is  snccessful,  it  remains  for  others  to  decide. 

Some  of  the  definitions  are  rather  of  the  length  of  descrip- 
tions. But  what,  it  may  be  asked,  is  the  use  of  definitions 
which  are  so  short,  that  they  convey  no  clear  notions  except  to 
him  who  is  well  acquainted  with  the  nature  of  the  things  de- 
fined, before  he  reads  the  definitions  thereof? 

The  Reader  wdll  observe  numerous  references  to  cases  as 
stated  by  Fearne,  and  to  some  as  stated  by  Roper.  The  author 
thought  it  expedient  to  contract,  in  some  degree,  the  field  of  his 
labour,  lest  he  might  be  compelled  or  tempted  to  take  only  a 
cursory  or  superficial  view  of  his  subject ;  and,  for  this  reason, 
he  has  only  given  abstracts  or  statements  of  cases  decided 
within  the  last  fifty  years,  except  in  one  or  two  instances  ;  and 
has  almost  always  relied  upon  the  abstracts  or  statements  of  the 
earlier  decisions  by  Fearne  and  Roper,  and  in  one  or  two  in- 
stances, by  some  other  writer.  But  he  has  not  implicitly 
adopted  or  relied  upon  the  rules  or  propositions  which  they 
have  deduced  from  the  cases,  but  has  made  or  added  such 
qualifications  or  modifications  of  those  rules  or  propositions,  or 
deduced  such  fresh  conclusions  from  the  earlier  cases,  as  seem- 
ed to  be  requisite,  upon  a  careful  consideration  of  their  abstracts 
of  those  cases,  and  of  the  later  cases  abstracted  by  himself.  To 
have  given  statements  of  the  cases  correctly  stated  in  Fearne, 
would  of  course  have  been  superfluous ;  and  as  those  earlier 
cases  which  relate  to  chattels  personal  and  are  not  in  Fearne,  are 
very  fully  stated  in  Roper's  Legacies,  a  work  which  is  in  the 
hands  of  most  members  of  the  profession,  it  seemed  sufficient 
merely  to  refer  to  those  cases,  as  stated  in  Roper,  in  support  of 
the  rules  and  propositions  laid  down  in  regard  to  such  chattels 
personal. 

The  references  to  Fearne  are  to  the  pages  of  the  third  edition, 
printed  in  the  margin  of  the  present  edition,  within  brackets,  as 
in  the  ninth  and  other  intermediate  editions. 

The  abstracts  or  statements  of  many  of  the  cases  may  at  first 
sight  seem  unnecessarily  lengthy:  but  the  author  has  only 
given  (as  compendiously  as  he  could,  consistently  with  adher- 
ing to  the  w^ords  of  the  Judges,)  what  he  considers  a  sufficiently 
full  abstract  of  the  several  cases,  and  the  grounds  of  the  several 
decisions,  with  the  view  of  saving  the  practitioner,  as  much  as 
possible,  the  necessity  of  referring  to  the  Reports  themselves, 


PREFACE.  ix 

by  enabling  him  to  discern,  at  once,  whether  the  case  before 
him  is  governed  by  previous  cases,  or  may  be  distinguished 
from  tliern.  To  eii:iljl(>  him  to  do  this,  it  was  necessary  to  spe- 
cify the  grounds  on  ^vhich  these  cases  were  decided,  as  well  as 
to  state  the  cases  themselves:  for,  it  frequently  happens,  that 
one  case  may  closely  resemble  another  in  terms,  but  yet  may 
not  be  affected  by  it;  inasmuch  as  the  principle  of  the  one  is 
not  at  all  applicable  to  the  other,  or  the  one  may  have  been 
decided  upon  grounds  peculiar  to  itself,  and  not  constituting 
any  general  principle  of  law.  And  in  taking  this  course,  the 
author  has  only  been  following  the  example  of  Fearne  himself. 

The  Student  will  find  the  dislinctions,  points,  and  principles, 
embodied  in  rules  or  propositions,  or  in  distinct  passages,  in- 
stead of  being  obliged  to  search  for  them  in  the  discussion  of 
cases ;  so  that  he  can  either  read  the  cases,  as  illustrations  of 
the  rules  or  propositions,  or  can  pass  over  them  entirely,  and 
possess  himself,  with  comparative  facility,  of  the  result  of  the 
author's  labours. 

With  reference  to  the  title,  "An  Original  View,"  the  author 
is  particularly  desirous  of  observing,  that  the  work  was  not  com- 
menced or  carried  on  with  the  endeavour  or  the  wish  to  broach 
novel  opinions.  Though  he  believes,  that  as  a  whole,  it  is  as 
original  as  any  law  book,  supported  by  authorities,  can  be ;  yet, 
originality  7vas  not  his  object;  and  so  fa?'  from  being  partial  to 
his  own  first  impressions,  or  from  affecting  noveltij,  he  has  all 
along  considered  that  there  is  a  most  vehement  presumption  in 
favour  of  the  actual  decisions  of  the  Judges,  as  distinguished 
from  their  extra-judicial  dicta ;  because  they  have  had  the  im- 
mense advantage  of  hearing  both  sides  of  the  argument  ably 
discussed ;  and,  therefore,  he  has  always  striven  to  reconcile 
their  decisions  with  each  other,  and  with  principle;  and  in  the 
very  few  instances  in  which  he  has  ventured  to  question  the 
soundness  of  a  decision,  he  has  done  so  with  extreme  re- 
luctance. And  with  respect  to  the  text  books,  he  has  gladly 
availed  himself  of  the  authority  of  such  standard  words  as  Coke 
upon  Littleton,  She[)])ard's  Touchstone,  Blackstone's  Commen- 
taries, and  the  Treatise  of  Fearne,  even  where  the  support 
afforded  by  them  is  but  indirect  or  partial. 

Where  the  points  have  been  deduced  or  collected,  rather 
than  co})ied  from,  or  in  terms  furnished  in,  the  works  of  these 
and  other  writers,  or  in  the  reports  of  cases,  the  author  has 
prefixed  the  word  "see"  to  the  reference.  And  the  letters 
which  refer  to  the  authorities  at  the  bottom  of  the  pane,  arc 

Vol.  II.— B 


X  PREFACE. 

printed  both  at  the  beginning  and  ending  of  the  points  support- 
ed by  such  authorities.  This  plan  was  adopted  out  of  caution, 
in  order  that  in  considering  any  particular  point,  the  reader 
might  see  more  clearly  the  authority  upon  which  it  rests. 

Having  explained  the  nature  of  the  present  attempt,  the 
author  may  be  permitted  to  add,  that  while  it  has  afforded  him 
the  highest  intellectual  gratification,  it  has  at  the  same  time 
occasioned  him  the  most  intense  and  distracting  thought,  inso- 
much, that  in  several  instances,  he  must  have  fallen  a  victim  to 
it,  had  he  not  been  preserved  and  supported  by  the  gracious  care 
of  Him  "  in  whose  hand  it  is  to  give  strength  unto  all."  Yet, 
notwithstanding  all  the  labour  he  has  bestowed,  it  would  per- 
haps be  presumptuous  in  him  to  suppose,  that  he  has  not  fallen 
into  any  misconceptions,  or  that  he  is  not  chargeable  with  any 
inadvertencies.  Indeed,  it  is  with  feelings  of  the  most  unfeign- 
ed diffidence,  that  he  ventures  to  submit  these  pages  to  the  judg- 
ment of  the  profession.  He  does  so  in  the  humble  hope,  that, 
bearing  in  mind  the  fallibility  of  those  who  criticise,  as  well  as 
of  those  whose  writings  are  the  subjects  of  criticism,  and  the 
liability,  indeed,  even  of  the  most  acute  and  profound  to  fall 
into  error,  where  the  distinctions  are  necessarily  so  subtle,  and 
the  relations  so  complex;  and  remembering  also,  that  error  is 
often  more  plausible  than  truth ;  the  Reader  will  hesitate  before 
he  condemns  or  censures  what  has  been  the  result  of  such  close 
consideration;  and,  that  if  he  should  consider  any  part  of  the 
Essay  to  be  erroneous  or  faulty,  after  well  weighing  the  same, 
he  will  not  be  unwilling  to  make  those  allowances  which  the 
imusual  difficulty  of  the  work  would  seem  to  entitle  the  author 
to  claim  at  his  hands. 


17,  Lincoln's  Inn  Fields. 


AN  ANALYSIS 


OF  THE  FOLLOWING 


ESSAY  ON  EXECUTORY  INTERESTS 


PART  I. 


THE  VARIOUS  KINDS  OF  INTERESTS,  AND  THE  DIFFERENT 
SORTS  OF  CONDITIONS  AND  LIMITATIONS  ON  WHICH  THEY 
DEPEND,  OR  BY  WHICH  THEY  ARE  CREATED  OR  AFFECTED, 
ANALYTICALLY  ARRANGED,  DEFINED,  AND  DISTINGUISHED. 


CHAPTER  L 


THE  DIFFERENT  KINDS  OF  CONDITIONS  ON  WHICH  INTERESTS  MAT  DE- 
PEND, OR  BY  WHICH  THEY  MAY  BE  AFFECTED,  ANALYTICALLY  AR- 
RANGED, DEFINED,  AND  DISTINGUISHED. 

1.  Knowledge  of  conditions  essentially  necessary. 

2.  Division  of  conditions,  in  the  widest  sense  of  the  term. 

3.  A  second  division  of  conditions,  in  the  widest  sense  of  the  terra. 

4.  Division  of  conditions  properly  so  called. 

5.  Definition  of  an  express  condition. 

6.  Definition  of  an  implied  condition. 

7.  Definition  of  a  direct  condition. 

8.  Definition  of  an  indirect  condition. 

9.  Definition  of  a  general  condition. 

10.  Definition  of  a  special  condition. 

11.  Division  of  general  conditions. 

12.  Definition  of  a  condition  subsequent. 

13.  Definition  of  a  condition  precedent. 

14.  Definition  of  a  mixed  condition. 

15.  Two  forms  of  conditions  subsequent. 

16.  Definition  of  a  condition  subsequent  of  the  concise  or  implied 

form. 

17.  Definition  of  a  condition  subsequent  of  the  unconci.se  or  ex- 

plicit form. 

18.  19.      The  two  forms  of  conditions  subsequent  illustrated. 


xii  AN  ANALYSIS  OF  THE  FOLLOWING 

20.  Definition  of  a  mixed  condition  of  the  destructive  and  creative 

kind, 
JNIixed  conditions  sometimes  termed  conditions  precedent,  and 

sometimes  conditions  subsequent. 
2L  Mixed  conditions  distinguished  from  certain  others. 

22.  Definition  of  a  mixed  condition  of  the  destructive  and  accele- 

rative  kind. 
The  Earl  of  Scarborough  v.  Doe  d.  Savik,  3  Ad.  &  EL  897. 

23.  Definition  of  a  defeasance. 

CHAPTER  II. 

THE  DIFFERENT  KINDS  OF  LIMITATIONS,  IN  THE  ORIGINAL  SENSE  OF 
LIMITS,  BY  WHICH  INTERESTS  MAY  BE  RENDERED  DETERMINABLE, 
ANALYTICALLY  ARRANGED,  DEFINED,  AND   DISTINGUISHED. 

24.  Two  senses  of  the  word  "Hmitation;"  viz.  the  original  sense, 

and  the  derivative  sense. 

26.  Definition  of  a  limitation,  in  the  original  sense. 

27.  Division  of  such  limitations. 

28.  Definition  of  a  general  limitation. 

29.  Necessity  for  division  of  estates  into  classes. 

30.  General  limitations  are  either  express  or  implied. 

31.  32.       Examples  of  express  general  limitations. 
33.  Instances  of  im]5lied  general  limitations. 

.34.  Definition  of  a  special  or  collateral  limitation. 

35.  Examples  of  special  limitations. 

36.  Remarks  on  the  term  "collateral"  applied  to  special  limi- 

tations. 

37.  Special  limitations,  either  regular  or  irregular. 

38.  Definition  of  a  regular  special  limitation. 

39.  Definition  of  an  irregular  special  limitation. 

40.  Qualification  of  a  regular  limitation. 

41.  Definition  of  a  direct  regular  limitation. 

42.  Definition  of  an  indirect  regular  limitation. 

43.  Same  contingency  may  be  both  a  special  limitation  and  a  con- 

dition precedent. 

CHAPTER  III. 

THE    DIFFERENT    KINDS    OF     INTERESTS    ANALYTICALLY    ARRANGED,    DE- 
FINED,  AND    DISTINGUISHED. 

SECTION   I. 

Introductory  Definitions  and  Observations. 

44.  I.  Definition  of  an  interest,  in  the  widest  sense  of  the  term. 

45.  II.  Rights  or  interests  either  perfect  or  imperfect.     A  perfect 

interest  described. 


ESSAY  ON  EXECUTORY  INTERESTS.  xiii 

4G.  III.  Definition  of  property  or  ownership. 

47.  IV.  Definition  of  seisin. 

48.  V.  Wlien  a  person  is  said  to  have  a  vested  interest  or  actual 

estate,  and  to  be  seised. 
Wheti  he  is  not  said  to  have  a  vested  interest,  or  to  be  seised. 

49.  VI,  Different  modes  of  possession. 

50.  VII.  Three  kinds  of  interests  commensurate  with  the  dura- 

tion of  real  hereditaments;  viz.,  legal  ownership,  equitable 
ownership,  and  mere  possession.  Tliese  may  be  either 
united  or  disunited. 

51.  VIII.  Other  interests  which  are  not  commensurate  with  the 

duration  of  real  hereditaments,  and  are  always  collateral 
to  the  legal  ownership. 

52.  IX.  Legal  ownership  divisible  into  constituent  periods,  and 

divisible  either  among  successive  owners,  or  among  con- 
temporaneous owners. 

53.  Each  of  whom  has  a  part  of  the  seisin,  and  a  vested  interest 

or  actual  estate. 

54.  X.  But  it  cannot  reside  in  two  different  persons  without  pri- 

vity of  estate. 

55.  Illustration  of  the  two  preceding  observations. 

56.  XI.   The  eqnitable  ownership  and  the  possession  are  of  simi- 

lar duration  to  the  legal  ownership. 

57.  XII.  The  equitable  ownership  cannot  reside  in  two  diflerent 

persons  without  privity  of  estate. 

58.  XIII.  Into  what  portions  the  seisin,  property,  or  ownership 

is  divisible. 

59.  XIV.  The  legal  ownership  or  freehold  and  inheritance  can- 

not be  in  abeyance. 
60 — 62.     Consequences  of  this  doctrine. 

SECTION   II. 

The  different  Classes  of  Interests^  in  the  widest  sense  of  the  term, 
defined  and  distinguished. 

63.  Definition  of  an  interest,  in  the  widest  sense  of  the  term. 

64.  Division  of  interests,  in  the  widest  sense  of  the  term,  in  lands 

or  tenements, 

65.  I.  Definition  of  a  legal  interest  of  freehold, 

66.  II.  Definition  of  a  legal  interest  for  a  term  of  years. 

67.  III.  Definition  of  an  eqnitable  interest  of  freehold. 

68.  IV.  Definition  of  an  equitable  interest  for  a  term  of  years. 

69.  V.  Definition  of  a  quasi  interest.     The  ditferent  species  of 

quasi  interests. 

70.  VI,  JNIero  precarious  possessions. 

71.  VII.  Definition  of  an  expectancy. 

72.  VIII,  Definition  of  a  power  of  appointment. 

73.  IX.  Definition  of  a  charge. 


xiv  AN  ANALYSIS  OF  THE  FOLLOWING 

74.  X.  Definition  of  a  lien. 


74a.  Interests,  in  tiic  widest  sense  of  the  term,  in  perso7ial  pro- 

perty. 

SECTION  III. 

The  different  kinds  of  Interests,  of  the  measure  of  Freehold,  in  Lands 
and  Tenements,  and  Interests  in  Chattels,  analytically  arranged^ 
defiled  and  distinguished. 

75.  I.  Division  of  freehold  interests  with  reference  to  the  exist- 

ence, &c.  of  the  seisin,  property,  or  ownership. 
75a.  Two  modes  of  defining  vested  and  executory  interests. 

1.  Definition  of  vested  and  executory  interests,  with  refe- 

rence to  the  right  of  possession  or  enjoyment. 

76.  Definition  of  a  vested  interest,  or  actual  estate. 

77.  Definition  of  a  present  vested  interest. 

78.  Definition  of  a  future  vested  interest. 

78a.  Remarks  on  the  distinction  between  a  present  and  a  future 

vested  interest. 

79.  When  an  estate  is  vested  in  possession. 

80.  8L      When  an  estate  is  vested  in  right  or  interest. 
82.  Vesting  inchoately  or  inceptively. 

84.  Definition  of  an  executory  interest. 

85.  Definition  of  a  certain  executory  interest. 

86.  Definition  of  a  contingent  executory  interest. 

2.  Definition  of  vested  and  executory  interests,  without  re- 

ference to  the  right  of  possession  or  enjoyment. 

87.  Definition  of  a  vested  interest  or  actual  estate. 

88.  Definition  of  a  present  vested  interest. 

89.  Definition  of  a  future  vested  interest  in  lands  or  tenements. 
S9a.  Definition  of  a  future  vested  interest  in  chattels. 

90.  Definition  of  an  executory  interest — of  a  certain  executory 

interest — and  of  a  contingent  executory  interest. 

91.  Vested    and  executory  interests  are  most  correctly    defined 

without  reference  to  the  right  of  possession  or  enjoyment. 

92.  The  several    kinds  of  certain  and  contingent  executory  in- 

terests. 

93.  II.    Division  of   contingent  interests   with  reference  to  the 

nature  of  the  contingency. 

94.  Definition  of  an  interest  which  is  contingent  on  account  of 

the  person. 

95.  III.  Division  of  contingent  interests  with  reference  to  the 

capacity  of  transmission. 

96.  IV.  Division  of  interests  with  reference  to  the  certainty  of 

their  duration. 

97.  Definition  of  a  defeasible  interest. 

98.  Definition  of  an  indefeasible  or  absolute  interest. 


ESSAY  ON  EXECUTORY  INTERESTS.  xv 

99.  V.  Division  of  ii)lerests  with  reference  to  the  quantity  of  ni- 

terest. 

100.  Definition  of  the  absolute  interest. 

101.  Definition  of  a  Uniited  interest. 

102 — 3.       The  distinction  between  the  absohite  interest,  and  an  abso- 
lute interest. 

104.  Foregoing  definitions  applicable  to  legal  and  equitable  in- 

terests, and  to  real  and  personal  estate. 

CHAPTER  IV. 

REMAINDERS  IN  GENERAL,  AND  OTHER  KINDS  ON  LIMITATIONS,  IN 
THE  DERIVATIVE  SENSE,  ANALYTICALLY  ARRANGED,  DEFINED,  AND 
DISTINGUISHED. 

105.  Two  senses  of  the  word  limitation. 

106.  Definition  of  a  limitation,  in  the  derivative  sense. 

SECTION  I. 

Division  of  such  Limxlations  into  Siinple  and  Qiialijiedy  with 
Definitions  of  those  terms. 

107.  Division  of  limitations  into  simple  and  qualified. 
lOS.  Definition  of  a  simple  or  absolute  limitation. 

109.  Definition  of  a  qualified  limitation. 

1 10.  Distinction  between  directly  qualified  and  indirectly  qualified 

limitations. 

SECTION  II. 

Division  of  Limitations  into  Immediate  and  Executory,  with  Defi- 
nitions of  those  terms,  and  Observations  thereon. 

111.  Division  of  limitations  into  immediate  and  executory. 
Ilia.  The  generic  sense  of  the  term  executory  devise. — The  spe- 
cific and  usual  sense  of  the  term. 

11  lb.  The  general  term   "executory  devise"  is  commonly  used 

instead  of  specific  terms. 

lllc.  This  has  generally  arisen  from  the  imperfect  state  of  the 

science,  and  has  been  very  prejudicial. — For  this  reason, 
specific  terms  are  used  in  the  present  Essay,  rather  than 
general  terms,  and  the  specific  distinctions  and  relations 
of  and  between  the  various  conditions,  limitations,  and 
interests,  are  pointed  out. 

SECTION  III. 

Of  Limitations  of  f'ested  Interests,  ivhen  considered  with  reference 
simply  to  the  Possession  or  Enjoyment,  or  both. 

Hid.  I.  Of  limitations  of  interests  vested  in  possession,  or  m  en- 

joyment, or  in  both. 


xvi  AN  ANALYSIS  OF  THE  FOLLOWING 

llle.  II.  Of  limilafions  of  vested  interests  in  real  estate,  subject  to 

a  term  for  years. 

11  If.  III.  Of  limitations  of  vested  interests,  subject  to  a  cbattel  in- 

terest of  uncertain  duration. 

lllg.  IV.  Of  other   limitations  of  vested   interests,  subject  to  a 

suspension  of  the  possession,  or  enjoyment,  or  both. 

112  SECTION  IV. 

%fl  fourth  Division  of  Liinil  at  ions  into  those  forming  the  Subject  of 
the  following  Sections. 

SECTION  V. 

Of  Limitations  of  Present    Vested  Interests,  when  considered  with 
reference  to  t/ie  modes  in  which  they  are  constructed. 

113.  I.  Of  absolute  limitations. 

114.  II.  Of  hypothetical  limitations. 

115.  III.  Of  limitations  in  default  of  appointment. 

116  SECTION  VI. 

Of  Limitations  in  futuro:  and  first, 
Of  Limitations  creating  Powers  of  Jlppointment. 

SECTION  VII. 

Of  Limitations  of  Springing  Interests. 

117.  Definition  of  a  limitation  of  a  springing  interest  in  rca/ pro- 

perty. 

118.  Division  of  such  limitations  into  seven  kinds. 

119.  I.  Definition  of  the  first  kind. 
Gardner  v.  Lyddon,  3  You.  &  Jer.  389. 

120.  II.  Definition  of  the  second  kind. 

121.  III.  Definition  of  the  third  kind. 

122.  Danger  of  confounding  the  second,  third,  and  fourth  kinds 

of  limitations  of  springuig  interests  with  contingent  re- 
mainders. 

123.  IV.  Definition  of  the  fourth  kind. 

124.  V.  Definition  of  the  fifth  kind. 

124a.  Limitations  of  vested  interests,  subject  to  a  chattel  interest, 

must  be  distinguished  from  the  second,  third,  fourth,  and 
fifth  kinds  of  limitations  of  springing  interests, 

125.  VI.  DcfinUion  of  the  sixth  kind. 

126.  VII.  Definition  of  the  seventh  kind. 

127.  Observations  of  Lord  Nottingham.     Remarks  on  the  case 

put  by  him. 
127a.  These  limitations  can  only  be  by  way  of  use  or  devise,  and 

are  termed  springing  uses  and  executory  devises. 


ESSAY  ON  EXECUTORY  INTERESTS.  xvii 

127b.  Definition  of  a  limitation  of  a  springing  interest  in  pergonal 

property. 

SECTION  VIII. 

Of  JlUernative  Limitations. 

128.  Definition  of  an  alternative  limitation. 

129.  Diflcrcnt  names  given  to  these  limitations. 

130.  Retiuisites  in  an  alternative  limitation. 

131.  The  omission  of  the  condition  on  which  tlie  prior  limitation 

is  to  take  eflect. 

132.  Two  kinds  of  alternative  limitations,  as  regards  their  form. 

133.  I.  Definition  of  an  alternative  limitation  of  the  proper  or 

explicit  form. 
13-1.  II.  Definition  of  an  alternative  limitation  of  the  improper  or 

elliptical  form. 

135.  The  contingency  sometimes  implied  by  the  word  "or." 
Montagu  v.  Nucella,  1  Riiss.   165.     Jones  v.  Torin,  6  Sim. 

255. 

136.  The  contingency  sometimes  implied  in  the  context. 
Pearson  v.  Stephen,  2  Dow  &  Clark,  328.     Observations 

thereon. 
136a.  Any  number  of  alternative  interests  may  be  limited  in  suc- 

cession. 
Laffer  v.  Edwards,  3  Mad.  210.     Observations  thereon. 

SECTION  IX. 

Of  Augmentative  Limitations. 

137.  Definition  thereof. 
138 — 46.    Illustrations. 

SECTION  X. 
Of  Diminuent  Limitations. 

147.  Definition  thereof. 

SECTION  XI. 
Of  Conditional  Limitations. 

148.  Generic  sense  of  the  term.     The  use  of  the  term  in  this 

sense  is  not  incorrect,  but  yet  is  productive  of  mischief. 

149.  Definition  of  a  conditional  limitation,  in  the  specific  sense  of 

the  term. 
liackslraio  v.  Vile,  1  Sim.  &  Stu.  604. 
149*.  Conditional  limitation  must  be  really  limited  in  defeasance 

of  a  prior  interest. 
149a.  Conditional  limitations  can  only  be  by  way  of  use  or  devise. 

Vol.  II.— C 


xviii  AN  ANALYSIS  OF  THE  FOLLOWING 

150.  They  are  termed  shifting  and  springing  uses  and  executory 

devises. 

151.  Reason  of  the  term  conditional  limitation. 

152.  It  is  not  expedient  to  extend  the  term  "springing  interests" 

to  interests  under  conditional  limitations. 

153.  Conditional  limitations  in  general  distinguished  from  other 

clauses ; 
—  from  conditions  subsequent;  from  clauses  of  cesser  and 
acceleration;  and  from  special  or  collateral   limitations, 
in  one  respect; 

154.  —  from  special  or  collateral  limitations,  in  another  respect; 

155.  156.    —  from  remainders,  and  limitations  of  springing  interests; 

157.  —  from  alternative  limitations; 

158.  —  and  from  augmentative  and  diminuent  limitations. 

SECTION  XII. 
Of  Remainders. 

159.  Lax  sense  of  the  term. 

Definition  of  a  limitation  of  a  remainder,  properly  so  called. 
159a.  Remainders  distinguished  from  future  bequests; 

160.  Remainders  distinguished  from  conditional  limitations  ; 

161.  —  from  alternative  limitations  ; 

162.  —  from  the  first  six  kinds  of  limitations  of  springing  inte- 

rests ; 

163.  —  from  augmentative  limitations; 

164.  —  from  diminuent  limitations; 

165.  —  from  the  seventh  kind  of  limitations  of  springing  interests ; 
167.  —  and  from  hmitations  of  the  whole,  or  the  immediate  part, 

of  a  reversion. 


SECTION  XIII. 

Of  Quasi  Remainders. 

168.  Definition  of  a  quasi  remainder. 

There  cannot  be  a  remainder  in  personal  property. 
168a.  Chattels  real  may  now  be  limited  over;  but  a  limitation  over 

of  them  is  not  a  remainder,  strictly  so  called,  though  it 

may  be  analogous  to  one. 
168b.  The  same  is  the  case  with  chattels  personal. 

169.  SECTION  XIV. 

Of  Limit  al  ions  of  the  Whole.,  or  the  Immediate  Part, of  a  Reversion. 


ESSAY  ON  EXECUTORY  INTERESTS.  xix 

CHAPTER  V. 

VESTED  AND  CONTINGENT  REMAINDERS  DEFINED  AND  DISTINGUISHED. 

SECTION  I. 

Vested  and  Contingent  Remainders  in  general  defined. 

170.  Three  modes  of  defining  vested  and  contingent  remainders. 

171 — 2.  Vested  and  contingent  remainders  defined  without  reference 
to  the  right  of  possession  or  enjoyment,  or  ihe  possession 
or  enjoyment  itself. 

173 — 4.  The  same  defined  with  reference  to  the  right  of  possession 
or  enjoyment. 

175 — 6.  The  same  defined  with  reference  to  the  possession  or  enjoy- 
ment itself. 

SECTION  II. 

The  Distinctions  between  Vested  and  Contingent  Remainders  pointed 
out,  ivilh  Observations  thereon. 

111.  Distinction  as  regards  the  mode  of  their  creation,  forming  a 

true  criterion. 

178 — 9.  Consequential  distinctions  pertaining  to  their  nature  and 
qualities. 

180.  It  is  not  the  indefeasibleness  of  the  right  of  possession  or  en- 

joyment, nor  the  absolute  certainty  of  the  possession  or 
enjoyment  itself,  which  distinguishes  a  vested  remainder. 

181 — 2.  But  still  a  vested  remainder  is  only  uncertain  on  account  of 
the  relative  uncertainty  of  its  own  duration. 

183.  A  remainder  may  be  limited  on  a  contingency,  and  yet  be 

vested. 

SECTION  III. 

The  several  kinds  of  Contingent  Remainders  defined,  with  Observa- 
^  tions  thereon. 

Four  kinds  of  contingent  remainders. 
184 — 7.       Definitions  thereof. 
187a.  Remarks  on  a  devise  to  two,  and  the  survivor,  and  the  heirs 

of  such  survivor. 
188 — 90.     All  the  kinds  of  contingent  remainders  strictly  depend  on  a 

contingency,  irrespective  of  their  own  duration. 
191.  They  may  be  all  combined  in  the  same  limitation. 

192 — 4.       Remainders  after  estates  tail. 
195.  A  contingent  remainder  may  become  a  vested  remainder. 


XX 


AN  ANALYSIS  OF  THE  FOLLOWING 


PART  IL 

RULES  AND  PRINCIPLES  FOR  DISTINGUISHING  CERTAIN  CASES 
OF  ONE  KIND  OF  LIMITATION  CREATING  AN  INTEREST, 
FROM  ANOTHER  KIND  TO  WHICH  THEY  MAY  APPEAR  TO 
BELONG. 

CHAPTER  I. 

OF  THE    CONSTRUING  A  LIMITATION  TO  BE  A  REMAINDER,  RATHER   THAN 
AN  EXECUTORY  LIMITATION  NOT  BY  WAY  OF  REMAINDER. 

196.  The  general  rule,  as  commonly  stated. 

197.  The  general  rule,  as  more  accurately  stated. 

198.  Reason  usually  assigned  for  the  same. 

199.  An  additional  reason. 


CHAPTER  II. 


OF    THE     CONSTRUING    AN    INTEREST     TO     BE     VESTED     RATHER    THAN 

CONTINGENT. 

SECTION  I. 

The  Rule  stated,  and  the  Reasons  thereof  explained. 

200.  The  general  rule,  as  commonly  stated. 

201.  The  general  rule,  as  more  precisely  stated. 

202 — 3.  Reasons  thereof :  1.  Destructibility  of  contingent  interests. 

204.  2.  Abuse  of  property  by  the  heir  at  law  in  the  interim. 

205.  3.  Unsettled  state  of  the  family  whose  interest  is  contingent. 

206.  4.  Want  of  provision  for  children  of  parents  dying  under  age 

of  21,  to  which  vesting  is  postponed. 

207.  Weight  of  this  reason  may  be  doubted. 

208.  5.  Want  of  provision  for  children  in  other  cases  where  the 

interest  is  contingent  on  account  of  the  person. 

209.  6.  Want  of  maintenance  for  the  persons  themselves,  in  cer- 

tain cases,  to  whom  contingent  interests  are  given. 
209a.  7.  Leaning  in  favour  of  free  enjoyment  and  alienation. 

SECTION  II. 

The  Application  of  the  Rule  to  Limitations  in  favour  of  a  Person  of 

a  given  Character. 

210.  I.  When  an  ultimate  limitation  in  favour  of  an  heir  creates  a 

vested  interest. 


ESSAY  ON  EXECUTORY  INTERESTS.  xxi 

211.  Reason  for  the  rule. 

CKcife  V.  Jones,  13  Ves.  412.    Doe  d.  Pilkington  v.  Spratt, 
5  Bar.  &  Add.  731. 

212.  II.  When  an  ultimate  limitation  in  favour  of  an  heir  creates 

a  continpjeiit  interest. 
Marquis  Cholmondeley  v.  Lord  Clinton,  2  Jac.  &  Walk.  1. 
214.  III.  Devise  to  a  person  by  any  other  description  denotes  a 

person  sustaining  such  description  at  testator's  death. 
Perry  v.  Phelips,  1  Ves.  250.     Driver  v.  Frank,  3  Mau.  & 

Sel.  25.    Observations  tiicreon.    Adams  v.  Bush,  G  Bing. 

New  Cas.  1G4.     Stanley  v.  Stanley,  16  Ves.  491.    Stert 

v.  Platel,  Bing.  New  Cas.  434. 


SECTION  III. 

The  .Application  of  the  Rule  to  Legacies  and  Portions  apparently 
depending  on  Surviving  Parents,  as  a  Condition  Precedent. 

General  Principles. 

215.  When  the  leaning  in  favour  of  vesting  is  peculiarly  strong. 

216.  It  is  so  where  a  portion  or  legacy  seems  to  depend  on  sur- 

viving parents. 

217.  Distinction  between  a  gift  by  will,  and  a  trust  by  setdement. 

218.  Leaning  against  construing  survivorship  a  pre-requisite,  is 

strong  even  in  the  case  of  a  will. 

219.  But  much  stronger  in  the  case  of  a  marriage  settlement. 

Specijic  Rules. 

220.  I.  Where  one  child  survives,  and  the  words  importing  ne- 

cessity of  surviving  are  construed  so  as  to  admit  others 

who  did  not  survive. 
Hope  V.  Lord  Clifden,  6  Ves.  498.     King  v.  Hake,  9  Ves. 

438.     Howgrave  Cartier,  3  V.  &  B.  79. 
221."  II,  Where  no  child  survives,  but  words  importing  necessity 

of  surviving  are  construed  so  as  to  admit  those  who  did 

not  survive. 
Powis  V.  Burdctt,  9  Ves.  428. 
222.  III.  Where  no  child  survives,  and  none  are  admitted. 

Holchkin  v.  Humfrey,  2  Mad.  (i5.      IVhatford  v.  Moore,  7 

Sim.  574.     S.  C.  3  M.  &  C.  270. 


222a.  SECTION  IV. 

The  .Application  of  the  Rule  to  Subsequent  Interests,  limited  after 
Interests  depending  on  a  Condition  Precedent. 


xxii  AN  ANALYSIS  OF  THE  FOLLOWING 


CHAPTER  III. 

OF     THE     CONSTRUING    AN     INTEREST    TO     BE    ABSOLUTE     RATHER     THAN 

DEFEASIBLE. 

SECTION  I. 
A  General  Rule  suggested,  with  the  Reasons  thereof. 

223.  The  rule  suggested. — The  reasons  thereof;  namely, 

224.  1.  Odiousness  of  conditions; 

225.  2.  Leaning  in  favour  of  primary  objects; 

226.  3.  Leaning  in  favour  of  free  enjoyment  and  alienation  of 

property. 

SECTION  II. 
The  Jipplication  of  the  Rule  to  Bequests  to  a  Class  of  Persons. 

227 — 30.     I.  Where  an  aggregate  sum  is  given  to  a  person's  children, 

and  there  is  no  "limitation  over  on  failure  of  his  issue,  or 

other  particular  indication  of  intention. 
230a.  Hillv.  Chapman,  1  Ves.  Jun.  405.     Davidson  v.  Dallas, 

14  Ves.  57G. 
230b.  Taylorv.Langford,2Ves.  Jun.   118.     Godfreys.  Davis, 

6  Ves.  Jun.  43.      Walker  v.  Shore,  15  Ves.  122. 
230c.  Hoste  v.  Pratt,  3  Ves.   729.     Barrington  v.  Tristram,  6 

Ves.   344.      Whit  bread  v.   Lord  St.  John,  10  Ves.  152. 

Gilbert  v.  Boorman,  11  Ves.  238.      Clarke  v.  Clarke,  8 

Sim.  59.     Hughes  v.  Hughes,  14  Ves.  256. 
231,  II.  Where  a  specific  sum  is  given  to  each. 

232 34.     III.  Where  there  is  a  limitation  over  in  default  of  issue  of 

the  parent,  or  some  other  indication  of  an  intent  that  all 

should  take. 
Mills  V.  Norris,  5  Ves.  355.     Scott  v.  Earl  of  Scarborough, 

1  Beav.  154. 

SECTION  III. 

The  Application  of  the  Rule  to  Devises  and  Bequests,  where  there  is  a 
Limitation  over  in  case  of  the  Death  of  the  Devisee  or  Legatee 
within  a  certain  Tiine,  or  without  leaving  Issue  or  other  Objects 
who  might  derive  a  benefit  through  him. 

235.  I.  Common  cases  where  "or"  is  construed  « and,"  in  limi- 

tations of  real  estate. 

236.  Observations  on  this  construction. 

Fairfield  v.  Morgan,  2  Bos.  &  Pul.  N.  R.  38.  Eastman  v. 
Baker,  1  Taunt.  174.  Right  d.  Dai/  v.  Day,  16  East, 
67;  and  observations  thereon. 


ESSAY  ON  EXECUTORY  INTERESTS.  xxiii 

237.  11.  Where  "  or  "  is  construed  "and,"  in  limitations  of  per- 

sonal estate. 
Mylton  V.  Boodle,  6  Sim.   457.     Hawkins  v.   Hawkins,  7 
Sim.  173. 
237a.  III.  "  And  "  not  construed  "or"  in  sucli  limitations. 

Doe  d.  Everett  v,  Cooke,  7  East,  G9.     Doe  d.  Usher  v.  Jessep, 
12  East,  2SS. 

238.  IV.  Other  cases  where  "or"  is  construed  "and,"  in  limi- 

tations over  on  death  under  21  or  without  children. 

239.  V.  Other  cases  of  the  same  construction  in  limitations  over 

on  death  within  some  other  time,  or  without  leaving 
some  other  object  who  might  derive  a  benefit  through  the 
legatee. 

240.  IV.  Where  "  or  "  is  not  construed  "  and." 

SECTION  IV. 

The  AjipUcation  of  the  Rule  to  Portions  apparently  liable  to  be  de- 
feated by  a  Condition  Subsequent,  in  case  of  the  Children  to  lohom 
they  are  given  not  Surviving  their  Parents. 

241.  I.  Postponement  of  payment  till  after  parent's  death,  is  a 

postponement  of  the  actual  possession  only. 

242.  Word  "  payable  "  in  a  clause  of  survivorship  or  cesser  or  a 

limitation  over,  is  referred  exclusively  to  the  age  specified 
or  marriage. 
Hallifux  V.  Wilson,  16  Ves.  168.  Fry  v.  Lord  Sherborne, 
3  Sim.  243.  Mocatto  v.  Lindo,  9  Sim.  56.  Bright  v. 
Boive,  3  M.  &  K.  316;  and  observations  thereon. 
Torres  v.  Franco,  1  Russ.  &  M.  649 ;  and  observations 
thereon. 

243.  II.  Words   supplied,    or    the    word    "  or "    changed    into 

"and." 
Clutterbuck  v.  Edwards,  2  Russ.  &  ISI.  577.    Miles  v.  Dyer, 

5  Sim.  435  ;  and  observations  thereon. 

243a.  III.  "  Leaving  "  construed  "  having  had  "  or  "having." 

Marshall  v.  /////,  2  JNIau.  &  Sel.  608.     Maitlajid  v.  Chalie, 

6  Mad.  243. 

244.  IV.  Where  the  children  who  do  not  survive,  take  nothins:. 


CHAPTER  IV. 

PRESENT  VESTED  INTERESTS  SUBJECT  TO  A  TERM  FOR  YEARS,  DISTIN- 
GUISHED FROM  VESTED  AND  CONTINGENT  REMAINDERS,  AND  FROM 
SPRINGING    INTERESTS. 

245.  A  freehold  after  a  term  may  be  termed  a  remainder,  so  far 

as  regards  the  possession,  with  or  without  the  beneficial 
interest. 


xxiv  AN  ANALYSIS  OF  THE  FOLLOWING 

246.  But  it  is  not  a  remainder,  properly  so  called; 

247.  — but  is  either  a  present  vested  interest  subject  to  a  term  ;  or 

else  a  springing  interest. 
248—50.     I.  Where  a  freehold  after  a  term  is  a  present  vested  interest, 
subject  to  a  term; 

251.  — where  it  is  limited  on  the  effluxion  of  years; 

252.  — where  it  is  limited  on  the  dropping  of  a  life  or  lives. 

253.  Freeholds  after  a  term  are  called  remainders  by  Fearne,  in 

some  sense ;  and  assumed  to  be  such  in  several  cases,  in 
some  sense  at  least.  But  this  assumption  was  extra- 
judicial. And  if  Fearne  assumes  them  to  be  remainders, 
properly  so  called,  this  would  appear  to  be  an  oversight. 

254.  The  same  remark  applies  to  Butler. 

255.  II.  Where  a  freehold  after  a  term  is  a  springing  interest ; 
256 — 7.      — where  it  is  limited  on  the  effluxion  of  years,  and  in  other 

cases. 


258.  CHAPTER  V. 

FIRST  EXCEPTION  FROM  THE  EIRST  CLASS  OF  CONTINGENT  REMAIN- 
DERS, FORMED  BY  THE  USUAL  LIMITATION  TO  TRUSTEES  FOR  PRE- 
SERVING   CONTINGENT    REMAINDERS. 


CHAPTER  VI. 

SECOND    EXCEPTION    FROM    THE    FIRST     CLASS    OF    CONTINGENT 
REMAINDERS. 

259.  I.  Where  a  remainder  limited  on  a  contingent  determination 

of  the  preceding  estate,  may  take  effect  on  the  certain  ex- 
piration thereof. 

260.  As  in  the  case  of  a  devise  to  testator's  wife  for  life,  if  she 

shall  so  long  continue  his  widow;  and,  in  case  she  marry, 
to  Ji.  in  fee. 
26 L  II.  Where  a  remainder  can  only  take  effect  on  the  contin- 

gent determination  of  the  preceding  estate. 


CHAPTER  VII. 

SECTION  I. 

Certain  cases  of  Vested  Remainders,  and  the  First,  Second,  and 
Third  sorts  of  Contingent  Remainders,  and  the  Seventh  kind  of 
Springing  Interests,  distinguished  from  Conditiotial  Liinitatons. 

262.  The  grand  distinction  between  a  remainder  and  a  condi- 

tional limitation. 


ESSAY  ON  EXECUTORY  INTERESTS.  xxv 

2G3.  I.  Wlicre  a  subsequent  interest  depends  on  the  determina- 

tion of  the  prior  interest  by  force  of  a  regular  special 
or  collateral  limitation,  and  such  subsequent  interest  is  a 
remainder. 

264.  II.  Wlicre  a  subsequent  interest  depends  on  the  determina- 

tion of  the  prior  itUerest  by  force  of  an  irreguler  special  or 
collateral  limitation,  and  such  subsequent  interest  is  a 
remainder. 

265 — 69.     Illustrations. 

270.  III.  Where  a  subsequent  interest  depends  on  the  determi- 

nation of  the  prior  interest  by  force  of  a  mixed  condition, 
and  such  subsequent  interest  is  not  a  remainder;  nor  is 
it  good  at  the  common  law  in  any  other  way;  but  it  may- 
be good,  if  by  way  of  use  or  devise,  as  an  interest  under 
a  conditional  limitation. 

271 — 3.       Illustrations. 

274.  IV.  Where  a  subsequent  interest  depends  on  a  condition 

precedent  unconnected  with  the  determination  of  the 
prior  interest,  and  is  a  contingent  remainder,  capable  of 
afterwards  becoming  converted  into  a  vested  remainder. 

275.  Illustrations. 

SECTION  II. 

Practical  Suffgeslions  connected  ivith  the  Distinctioiis  in  the  First 

Section. 

277.  There  are  cases  where  it  may  seem  doubtful  in  what  way  a 

prior  interest  should  be  determinable,  and  a  subsequent 

interest  be  created. 
378.  I.  Where  the  prior  interest  should  be  determinable  by  force 

of  a  special  limitation,  and  the  subsequent  interest  be 

limited  by  way  of  remainder. 

279.  II.  Where  the  prior  interest  should  be  determinable,  and 

the  subsequent  interest  be  limited  to  arise,  on  the  fulfil- 
ment of  a  mixed  condition. 

280.  Illustrations. 

CHAPTER  Vm. 

CERTAIN  CASES  OF  ABSOLUTE  AND  DEFEASIBLE  VESTED  INTERESTS, 
DISTINGUISHED  FROM  SPRINGING  INTERESTS,  AND  FROM  THE  SE- 
COND,   THIRD,    AND    FOURTH    CLASSES    OF    CONTINGENT    REMAINDERS. 

SECTION  I. 

Cases  ivherc  an  Uncertain  Event  is  made  a  part  of  the  Description  of 
the  Devisee  or  Legatee. 

281.  I.  Where  an  uucertain  event  forms  part  of  the  original  de- 

scription. 
Vol.  II.— U 


xxvi  AN  ANALYSIS  OF  THE  FOLLOWING 

Duffiehlv.Duffield,  1  Dow  &  Clark,  26S.   Tucker  v.  Harris, 
5  Sim.  5 38. 
282 4.       II.  Where  an  uncertain  event  forms  an  independent  super- 
added description. 

SECTION  II. 

Ca,ies  luhcre  a  Devise  or  Bequest  has  reference  to  a  Future  Jige  or  an 
Unceutain  Event  which  does  not  form  part  of  the  Description  of 
the  Devisee  or  Legatee,  and  there  is  no  Indication  of  Vesting. 

285 6.       I.  Where  the  conditional  words  arc,  when,  as  soon  as,  at, 

upon,  from  and  after. 

287 9.       The  doctrine  of  the  Civil  Law. 

289a.  Nash  v.  Smith,  17  Ves.  29.     Gordon  v.  Rutherford,  Turn. 

and  Russ.    373.     Ford  v.   Rawlins,  1  Sim.  &  Stu.  328. 

Knight  V.  Knight,  2  Sim.  &  Stu.  490. 

290.  II.  Wlicre  the  conditional  words  are,  if,  in  case,  provided. 

291.  1.  In  the  case  of  legacies, 

292.  (1)  payable  out  of  real  estate. 

293.  (2)  payable  out  of  personal  estate. 
294 5.       The  doctrine  of  the  Civil  Law. 

296.  2.  In  the  case  of  real  estate. 

(1)  Where  the  word  provided  follows  the  devise,  and  there 
is  no  limitation  over. 

297.  (2)  Where  the  word  provided  follows  the  devise,  and  there 

is  a  limitation  over. 
298 9.       (3)  Where  the  word  if,  or  the  words  in  case,  follow  the 

devise. 
300.  Distinction  between  the  import  of  the  words  if,  and  in  case, 

and  the  import  of  the  words  when,  as  soon  as,  at,  upon, 

from  and  after. 


301. 


SECTION  III. 


Cases  where  Devise  has  reference  to  a  Time  or  Event  Certain,  and 
there  are  no  Indications  of  or  Grounds  for  supposing,  an  Imme- 
diate Vesting. 


SECTION  IV. 


Cases  where  the  Devise  or  Bequest  has  reference  to  a  Future  Jige, 
Time,  or  Event,  not  forming  pari  of  t/ie  Original  Description  of 
the  Devisee  or  Legatee;  and  there  are  Indications  of,  or  Grounds 
for  supposing,  an  Immediate  Vesting. 

309.  General  proposition. 

310.  I.  W^here  the  time  is  not  annexed  to  the  gift  itself. 

31 1!  1.  Application  of  the  distinction  to  legacies  payable  out  of 

personal  estate, 
311a.  which  are  governed  by  the  Civil  Law. 


ESSAY  ON  EXECUTORY  INTERESTS.  xxvii 

312.  The  doctrine  of  the  Civil  Law. 

313.  Grant  v.  Grant,  3  Y.  &  C.  171.     Bleasc  v.  Burgh,  2  Beav. 

221. 

Observations  on  the  foregoing  rule, 

314.  (1)  With  reference  to  cases  where  there  is  no  gift  but  in  a 

direction  to  pay  &c. 

315.  (2)  With  reference  to  cases  where  the  future  period  is  an- 

nexed both  to  the  payment,  possession,  or  enjoyment,  and 
to  the  gift  itself. 
Kevern  v.  fVU/lams,  5  Sim.  171.     Porter  v.  Fox,  G  Sim. 

4S5. 
Distinrtions  between  Porter  v.  Fox,  and  Kevern  v.  JVilliams. 
31G.  (3)  With  reference  to  the  character  of  the  distinction,  whicli 

is  commonly  disapproved  of; 

317.  .      but  is  in  reality  founded  on  one  among  many  indications  of 

the  testator's  intention. 

318.  Quotation  from  Voet. 

319 — 20.     2.  Application  of  the  distinction  to  real  estate. 

Snow  V.  Poulden,  1  Keen,  186. 
321 — 2.       3.  Non-application  of  the  distinction  to  charges  on  real  estate. 

323.  Non-application  of  the  distinction  to  charges  on  real  estate, 

is  no  reflection  against  its  soundness. 
Reasons  for  the  non-application  thereof;  namely, 

324.  (1)  Non-existence  of  the  money  before  the  future  period. 

325.  (2)  Favour  shown  to  the  heir. 

326.  (3)  The  common  law  is  adhered  to  in  the  case  of  lands. 

327.  4.  Application   of  the   distinction  to   the   case  of  legacies 

charged  on  a  mixed  fund. 
328 — 9.       II.  Where  there  is  a  gift  of  the  whole  intermediate  income. 

330.  Doctrine  of  the  Civil  Law. 

331.  BatsforclY.  Kebbell,  3  Ves.  Jun.  363.   Edwards^.  Sj/tnons, 

6  Taunt.  213.  HaJisonv.  Graham,  6  Ves.  229.'  Lane 
V.  Goudgc,  9  Ves.  225.  Doe  d.  Dollerj  v.  fVard,  9  Ad. 
&  El.  5S2.  Rolfe  V.  Sowerby,  1  Taml.  376.  Breedon  v. 
Tugman,  3  M.  &  K.  2S9.  fVatson  v.  Hayes,  9  Sim.  500. 
Lister  v.  Bradley,  1  Hare,  10. 
Reasons  for  the  rule;  namely, 

332.  1.  Giving  of  interest  shows  intention  to  separate  the  legacy 

from  the  residue. 

333 — 5.  2.  Intermediate  income  is  given  in  respect  of  a  vested  inte- 
rest in  the  property  itselt'. 

336 — 7.  3.  But  this  construction  of  a  gift  of  intermediate  income  not 
being  one  that  arises  from  necessary  implication,  such 
gift  is  not  sutlicient  to  vest  an  interest,  apart  from  the 
leaning  in  favour  of  vesting; 

338.  And  as  the  leaning  in  favour  of  vesting  is  counterpoised  by 

other  considerations  in  the  case  of  charges  on  real  estate, 
the  gift  of  the  intermediate  income  is  insuliicient  to  vest 
such  charges. 


XXVlll 


AN  ANALYSIS  OF  THE  FOLLOWING 


339.  But  if  a  legacy  charged  on  real  estate  is  expressly  directed 

to  vest  before  the  day  for  payment,  it  will  so  vest. 
Watkins  v.  Cheek,  2  Sim.  &  Stu.  199, 

340.  III.  Where  executors  are  empowered  to  make  advances  out 

of  portions. 
Vivicm  v.  JMills,  1  Beav.  315. 
340a,  IV,  Where  the  postponement  is  apparently  from  necessity, 

or  for  the  accomplishment  of  some  special  purpose  in  the 
meantime,  unconnected  with  a  suspension  of  the  property 
or  ownership. 
Bacon  v.  Proctor,  Turn.  &  Russ.  31.  Goodinght  d.  Revell 
V.  Parker,  1  Mau.  &  Sel.  962.  Bayley  v.  Bishop,  9  Ves. 
6.  Blamire  v.  Geldart,  16  Ves.  314.  Goulhourn  v. 
Brooks,  2  You.  &  Coll.  539.  Cousins  v.  Schroder,  4  Sim. 
23.  Poole  V,  Terry,  Sim.  294,  Spencer  v,  Bullock,  2 
Ves.  687,  and  observations  thereon. 

341.  V.  Cases  of  residuary  bequests  on  marriage. 
Booth  v.  Booth,  4  Ves.  399. 

342 — 3.  VI.  Cases  of  particular  bequests  or  devises  where  the  period 
is  an  uncertain  one  other  than  that  of  the  attainment  of  a 
given  age. 

344.  VII.  Where  the  event  of  attaining  a  given  age  is  introduced 

by  words  importing  contingency  and  constituting  a  con- 
dition precedent. 

345.  VIII.  Where  a  trustee  is   appointed   for  the   intermediate 

time. 
Branstrom  v.  PFilkinsoti,  7  Ves.  420. 

SECTION  V. 

Cases  where  a  Devise  has  reference  to  an  Event  which  would  he  implied 
by  the  Words  introducing  a  Vested  Remainder. 

346 — 50.     Rule  and  illustrations. 

Pearsall  \.  Simpson,  15  Ves.  29. 


351. 


351a. 


SECTION  VI. 


Effect  of  a  Limitation  over. 


I. 


Where  the  condition  of  attaining  a  certain  age  is  intro- 


duced by  the  words  "if,"  "in  case,"  "provided,"  and  it 
follows  the  devise,  and  there  is  a  devise  over  simply  in 
the  event  of  the  non-attainment  of  that  age. 

Spring  V.  Caj.ywr,  Roll.  Abr.,  415,  pi.  12.  Edwards  v.  Ham- 
mond, 1  New  Rep.  313.  Broom  field  v.  Crowder,  1  New 
Rep.  313.  Boe  d.  Planner  v.  Scudamore,  2  Bos.  &  Pul. 
289. 

Observations  on  the  preceding  cases,  showing  the  principle 
of  the  distinction  between  those  cases  where  the  condition 


ESSAY  ON  EXECUTORY  INTERESTS.  xxix 

is  the  attainment  of  a  certain  age,  and  those  where  the 

condition  is  of  another  kind. 
352.  Effect  of  the  devise  over  in  the  above  cases. 

353 — 4.       The  reason  why  the  interest  of  the  prior  devise,  in  cases 

falling  within  the  above  rule,  is  a  vested  interest. 

355.  Cases  where  the  prior  devise  was  held  to  take  a  vested  in- 

terest on  account  of  the  devise  over. 
Doe  d.  Hunt  v.   Moore,  14   East,   COl.     Boe  d.  lioake  v. 
Nowell,  1  Man.  &  Sel.  327.     Randall  v.  Doe  d.  lioake, 

5  Dow.  202. 

356.  But  these  cases  arc  not  to  be  relied  on. 

357.  The  interest  of  the  prior  devisee  must  have  been  held  contin- 

gent, if  there  had  been  no  devise  over;  and  the  devise 
over  could  not  render  it  vested. 

358.  II.  Effect  of  a  devise  over  simply  on  the  non-happening  of 

the  event  on  which  the  prior  devise  is  apparently  made 
contingent. 

359.  1.  Such  a  devise  over  does  not  afford  a  necessary  presump- 

tion that  the  prior  devise  is  contingent. 

360.  2.  But  still  it  affords  some  presumption  thereof. 

361.  Or,  at  all  events,  it  affords  no  ground  for  supposing  such  prior 

devise  to  be  vested. 

362.  Skey  v.  Barnes,  3  JNIeriv.  335.     Judd  v.  Judd,  3  Sim.  525. 

Hunter  v.  Judd,  4  Sim.  455. 
362a.  III.  Devise  over  to  survivors  of  a  class  affords  some  pre- 

sumption of  vesting. 
Russell  V.  Buchanan,  2  Cromp.  &  Mees.  561.     S.  C.  7  Sim. 
628. 

363.  IV.  Where  a  prior  devise  is  apparently  made  contingent  on 

the  attainment  of  a  certain  age,  and  there  is  a  devise  over 
in  case  of  death  under  that  age  without  issue,  after  an  in- 
termediate devise  to  the  issue. 
364 — 5.  V.  Where  a  similar  prior  devise  is  made,  with  a  similar 
devise  over,  but  there  is  no  intermediate  devise  to  the 
issue. 
Bland  v.  IVilliajns,  3  M.  &  K.  411.  Machin  v.  Reynolds 
3  Brod.  &  Bing.  122.  Farmer  v.  Francis,  2  Bing,  151, 
and  2  Sim.  &  Stu.  505.  Murkin  v.  Philtipson,  3  M.  & 
K.  259.  Phipps  V.  Williams,  5  Sim.  44.  Phipps  v. 
Jlckers,  3  Clark  &  Fin.  702.      Warier  v.  Warier,  2  Brod. 

6  Bing.  349. 

366.  VI.  Where  the  attainment  of  a  certain  age  forms  part  of  the 

description  of  the  legatee  or  devisee. 
Bull  V.  Pritchard,  1  Russ.  213. 

SECTION  VI r. 

Of  the  Effect  of  Subsequent  Explanatory  fJ^ords. 

366a.  Rule. 

Critchett  v.  Taynlon,  1  Russ.  &  ISI.  541. 


XXX  AN  ANALYSIS  OF  THE  FOLLOWING 

SECTION  VIII. 

Of  the,  Effect  of  an  JlUowance  for  Maintenance. 

367.  I.  Where  the  whole  intermediate  income  is  given,  and  there 

is  no  limitation  over. 

368.  II.  Where  there  is  a  limitation  over, 
Vaiodry  v.  Gecldes,  1  Rnss.  &  M.  203. 

369.  III.  Wliere  part  only  of  the  intermediate  income  is  given. 

SECTION  IX. 

Of  the  Effect  of  a  Power  of  Jlppointment  over  Real  Estate. 

369a.  Rule. 

SECTION  X. 

Of  the  Effect  of  a  Power  of  Appointment  over  Personal  Estate. 

370.  I.  Gifts  to  a  class,  subject  to  power  of  appointing  among  them 

generally. 

371.  1.  Where  no  valid  appointment  is  made,  or  only  a  partial 

appointment. 

372.  2.  Where  a  valid  appointment  is  made  of  the  whole. 

373.  II.  Where  the  power  authorises  a  selection,  and  there  is  a 

limitation  in  default  of  appointment. 

374.  III.  Where  the  gift  is  to  such  of  a  class  as  a  person  shall 

appoint,  and  there  is  no  limitation  in  default  of  appoint- 
ment. 

CHAPTER  IX. 

CERTAIN  CASES  OP  INTERESTS  UNDER  LIMITATIONS  OP  THE  WHOLE  OR 
THE  IMMEDIATE  PART  OF  A  REVERSION,  DISTINGUISHED  PROM  CONTIN- 
GENT REMAINDERS  OF  THE  THIRD  CLASS,  AND  FROM  SPRINGING  IN- 
TERESTS. 

375.  I.  Where  a  limitation  is  to  take  effect  after  the  death  of  a 

person  who  has  a  life  estate  under  a  previous  instrument, 
and  such  limitation  is  a  limitation  of  the  whole  or  the 
immediate  part  of  the  reversion,  instead  of  a  contingent 
remainder  of  the  third  class. 

376.  II.  or  instead  of  a  limitation  of  a  springing  interest. 

377.  Observation  grounded  on  the  foregoing  distinctions. 

378.  III.  Where  a  limitation  is  to  take  effect  on  an  indefinite  fail- 

ure of  issue  who  are  all  inheritable  under  estates  tail  cre- 
ated by  a  previous  instrument;  and  such  limitation  is  a 
limitation  of  the  whole  or  the  immediate  part  of  the 
reversion. 


ESSAY  ON  EXECUTORY  INTERESTS.  xxxi 

379.  IV,  Where  a  limitation  is  to   take  ellect  on  an  indefinite 

failure  of  issue,  some  of  whom  are  not  inheritable  under 
such  estates  tail;  and  such  limitation  is  a  limitation  of  a 
springing  interest. 

380.  Exception,  where  the  interval  may  be  filled  up  by  implica- 

tion. 
Where  such  implication  does  not  arise. 
Banks  V.  IIo/r?ic,  1  Russ.  394. 

381.  V.  Where  a  limitation  is  made  of  the  reversion,  eo  nomine, 

on  an  indefinite  failure  of  issue,  some  of  whom  are  not 
inheritable  under  such  estates  tail ;  and  such  limitation  is 
a  limitation  of  the  whole  or  the  immediate  part  of  the 
reversion. 
Egerton  v.  Jones,  3  Sim.  409. 

382.  VI.  Where  a  limitation  is  to  take  effect  on  an  indefinite  fail- 

ure of  issue,  without  restriction  to  issue  by  a  particular 
marriage,  who  are  alone  inheritable  under  previously 
created  estates  tail ;  but  yet  no  other  marriage  was  con- 
templated, and  therefore  such  limitation  is  a  limitation  of 
the  whole  or  the  immediate  part  of  the  reversion. 

CHAPTER  X. 

OF  LIMITATIONS  TO  THE  HEIR  OR  HEIRS  OF  A  LIVING  PERSON,  CONSID- 
ERED IN  RELATION  TO  THE  FOURTH  CLASS  OF  CONTINGENT  REMAIN- 
DERS. 

AND,  FIRST,  OF  SUCH  LIMITATIONS  WHEN  THEY  PRIMA  FACIE  FALL 
WITHIN  THE  DESCRIPTION  OF  THAT  CLASS,  BUT  IN  REALITY  DO  NOT 
COME  WITHIN  it;  THE  WORD  HEIR  INIEANING  HEIR  APPARENT  OR 
PRESUMPTIVE,  AND  THE  WORD  HEIRS  MEANING  SONS,  DAUGHTERS, 
OR    CHILDREN. 

383.  Strict  sense  of  the  word  heir. 

A  remainder  to  the  heirs  of  a  living  person  is  a  limitation  to 
a  person  not  in  being. 

384.  or  if  in  being,  not  yet  ascertained. 

385.  And  hence  such  remainder  is  a  contingent  remainder  of  the 

fourth  class.     But, 

386.  I.  Sometimes  it  does  not  fall  within  the  description  of  that 

class. 

387.  *         1.  Where  the  word  heirs  is  used  for  sons,  daughters,  or  chil- 

dren. 
Doe  d.  Hallen  v.  Ironmonger,  3  East,  583. 

388.  Where  the  word  heir  is  used  for  heir  apparent  or  presump- 

tive. 

389.  II.  In  some  other  cases,  the  remainder  does  fall  within  the 

description  of,  but  yet  constitutes  an  exception  from  the 
fourth  class  of  contingent  remainders. 


xxxii  AN  ANALYSIS  OF  THE  FOLLOWING 


CHAPTER  XI. 

FIRST  EXCEPTION  FROM  THE  FOURTH  CLASS  OF  CONTINGENT  REMAIN- 
DERS, IN  THE  CASE  OF  AN  ULTIMATE  LIMITATION  TO  THE  RIGHT 
HEIRS    OF    THE    GRANTOR. 

390.  Limitations  of  this  kind  before  stat.  3  &  4  Will.  IV.  c.  106. 

39L  Enactment  of  stat.  3  &  4  Will.  IV.  c.  106,  s.  3. 


CHAPTER  XII. 

SECOND  EXCEPTION  FROM  THE  FOURTH  CLASS  OF  CONTINGENT  RE- 
MAINDERS, CREATED  BY  THE  RULE  IN  SHELLEY's  CASE,  WHERE 
REAL  PROPERTY  IS  LIMITED  TO  A  PERSON,  WITH  REMAINDER  TO 
HIS    HEIRS. 

392.  A  remainder  to  the  heirs  of  a  living  person  is  a  contingent 

remainder. 
But  an  exception  is  created  by  the  rule  in  Shelley^s  Case. 

SECTION  I. 
The  Rule  in  Shelley^ s  Case  stated. 

393.  Shelley^s  Case. 

394.  What  is  meant  by  the  Rule  in  Shelley^s  Case. 

395.  The  Rule  as  stated  in  SheUey^s  Case. 

396.  The  same  Rule  appears  in  the  Provost  of  Beverly^ s  Case. 

397.  Observations  on  the  virtual  substitution  of  another  rule. 

398.  The  Rule  may  be  differently  stated  without  losing  its  iden- 

tity; as  it  is  by  Lord  Coke. 

399.  Lord  Coke  retains  the  two  essential  requisites  thereof. 
400 — 1.       Another  statement  of  the  Rule,  » 
401a.           Limitations  not  by  way  of  remainder  are  not  within  the  Rule. 

SECTION  II. 
The  Terms  and  the  Operation  of  the  Rule  explained. 

402.  Word  heir  or  heirs  a  word  either  of  purchase  or  of  limitation. 

403.  Definition  of  words  of  purchase. 

404.  Definition  of  words  of  limitation. 

405.  The  invariable,  proximate,  and  proper  operation  of  the  Rule. 

406.  The  occasional,  mediate,  and  indirect  eff'ect  thereof. 

407.  Different  modes  in  which  the  subsequent  interest  is  executed 

in  the  ancestor — 

408.  I.  In  possession,  absolutely. 

409.  II.  In  interest. 


ESSAY  ON  EXECUTORY  INTERESTS.  xxxni 

410.  III.  In  possession,  subject  to  the  liability  of  afterwards  be- 

coming only  executed  in  interest. 
411 — 12.     IV,  In  possession,  to  some  purposes  only. 
413 — 17.     Cases  to  be  distinguished. 

418.  V.  As  a  contingent  remainder. 

SECTION  III, 
The  G7'ou)ids  of  //te  Rule  explained. 

419.  I.  Prevention  of  fraud  upon  feudal  tenure. 

420.  II.  Prevention  of  fraud  upon  the  specialty  creditors  of  the 

ancestor. 

421.  III.  Desire  of  facilitating  aUenation. 

422.  IV.  These  reasons  involve  another  ; 

423.  namely,  that  the  two  limitations  would  generally  and  in 
the  main  have  virtually  accomplished  the  same  purpose 
as  a  gift  of  the  inheritance  to  the  ancestor. 

424.  Illustration  of  this. 

425.  Certain  objections  answered, 

426 — 27.  Answer  to  another  objection  drawn  from  the  case  of  fictitious 
descenls  per  form  am  doni. 

428.  Fearne's  answer  to  the  objection  that  the  Rule  frustrates  the 

testator's  intention. 

429.  V.  The  object  of  the  Rule  is  to  give  effect  to  the  primary 

or  paramount  intent  at  the  expense  of  the  secondary  or 
minor  intent. 

430.  Definition  of  the  primary  or  paramount  intent. 

431.  Definition  of  the  secondary  or  minor  intent. 

432.  The  primary  or  paramount  intent  is  imported  by  the  word 

heirs,  in  connexion  with  the  preceding  freehold. 

433.  Necessary  to  reject  the  secondary  or  minor  intent  in  order  to 

effectuate  the  primary  or  })aramount  intent; 

434.  both  in  the  case  of  limitations  to  heirs  general, 

435.  and  in  the  case  of  limitations  to  heirs  special. 

435a.  Answer  to  an  objection  drawn  from  the  case  of  a  fictitious 

descent  per  for  mam  doni. 

436.  It  is  accurate  and  definite  to  say  that  the  secondary  or  minor 

intent  is  sacrificed  to  effectuate  the  primary  or  paramount 
intent. 

437.  Observations  of  Lord  Redcsdalc. 

438.  and  Lord  Dennian. 

439.  They  are  just,  but  are  not  explanalorv  of  the  grounds  of  the 

Rule. 
440 — 42.     Why  the  technical  words  overrule  the  other  words. 

443.  Wherein  consists  the  incorrectness  and  vagueness  of  the  com- 

mon statement  of  the  Rule. 

444.  Observation  of  Lord  Eldon  on  the  general  and  particular 

intent. 

445.  Observation  of  Butler  on  the  general  and  particular  intent. 
Vol.  II.— E 


xxxiv  AN  ANALYSIS  OF  THE  FOLLOWING 

446,  The  Rule  is  not  a  medium  for  discovering  the  intention. 

447.  But  the  Rule  is  a  means  for  effectuating  the  primary  or 

paramount  intention,  when  discovered. 
44S.  The  Rule  is  indeed  levelled  against  the  intent, 

449.  but  only  against  the  secondary  or  minor  intent. 

450.  Summary  of  the  grounds  of  the  Rule. 

SECTION  IV. 

The  ^IppUcat'wn  and  Non-application  of  the  Rule  in  cases  of  Legal 
Estates  and  Tnisls  Executed. 

451.  Preliminary  caution. 

452.  Three  general  rules  or  propositions  may  be  laid  down. 

453.  I.  First  general  proposition,  showing  where  the  rule  applies, 

notwithstanding  apparent  indications  to  the  contrary. 

454.  1.  Limitation  for  life  only, 

455.  2.  or  without  impeachment  of  waste. 

456.  3.  Power  to  jointure,  or  make  leases. 

457.  4.  Obligation  to  repair. 

458.  5.  Restraint  of  alienation. 

459.  6.  Limitation  to  trustees  to  preserve  contingent  remainders. 

460.  7.  Limitation  to  heirs  for  their  lives. 

461.  8.  Concurrence  of  several  of  these  indications. 

Roe  d.  Thong  v.  Bedford,  4  Mau.  &  Sel.  362.     Reece  v.  Steel, 
2  Sim.  233. 

462.  9.  Freehold  determinable  in  ancestor's  lifetime. 

463.  10.  Freehold  by  implication. 

464 — 5.       11.  Freehold  by  resulting  use,  where  a  remainder  is  limited 

to  the  heirs  special  of  the  grantor, 
465a.  even  where  there  is  an  ulterior  vested  interest. 

466.  Cases  where  the  limitation  is  to  the  heirs  special  of  a  third 

person. 

467.  12.  Freehold  by  resulting  use,  where  a  springing  interest  is 

limited  to  the  heirs  special  of  the  grantor. 

468.  13.  Where  there  are  apparently  two  concurrent  contingent 

remainders. 
Doe  d.  Cole  v.  Goldsmith,  7  Taunt.  209. 

469.  14.  Where  the  ancestor's  estate  is  not  for  his  own  benefit. 

470.  15.  Where  both  estates  are  equitable,  even  though  the  first 

be  for  the  separate  use  of  a  feme  covert. 

471.  16.  Where  the  estate  is  copyhold. - 

471a.  17.  Where  a  limitation  to  right  heirs  male  follows  one  to 

first  and  other  sons. 

Doe  d.  Earl  of  Lindsey  v.  Colyear,  11  East,  548. 
471b.  18.  Tenant  in  tail  after  possibility  of  issue  extinct. 

Platl  V.  Powles,  2  Mau.  &  Sel.  65. 

472.  II.  Second  general  proposition,  showing  where  the  rule  ap- 

plies, notwithstanding  apparent  indications  to  the  con- 
trary. 


ESSAY  ON  EXECUTORY  INTERESTS. 


XXXV 


473.  1.  Word  heir,  in  the  singular,  with  the  word  first,  next,  or 

eldest,  but  without  superadded  words  ol"  limitation. 

474;  2.  Words  of  limitation  superadded  to  the  word  heirs. 

Kinc/i  V.  fVard,  2  Sim.  &  Stu.  409.     Measure  v.  Gee,  5  Bar. 
&  Aid.  910.     Nash  v.  Coa/es,  3  Bar.  &  Adol.  839. 

475.  3.  Superadded  words  of  distributive  modification,  witliout 

superadded  words  of  limitation. 
JDoe  d.  Candler  v.  Smith,  7  D.  &  E.  531.  Bennett  v.  Earl 
of  Tanker vi/e,  19  Ves.  170.  Pierson  v.  Vickers,  5  East, 
548.  Jesson  v.  Wright,  2  Bligh.  51.  Doe  d.  Atkinson 
V.  Feathcrstone,  1  Bar.  &  Adol.  944.  Gretton  v.  Haia- 
ard,  G  Taunt.  94,  and  observations  thereon. 

476.  4.  Word  sous  or  daughters,  referring  to  tlie  heirs,  if  only 

used  in  the  sense  of  males  or  females,  &c. 
Poole  V.  Poole,  3  Bos.  &  Pul.  G20. 

477.  5.  Intention  that  the  limitations  should  be  in  strict  settlement. 
Douglas  v.  Congreve,  1  Beav.  59. 

478.  G.  Superadded  words  usually  occurring  in  limitations  to  first 

and  other  sons  in  tail. 
Fctherston  v.  Fetherston,  3  Clark  &  Fin.  G7.  S.  C.  9  Bligh, 
237. 

479.  III.  Third  general  proposition,  showing  where  the  rule  does 

not  apply. 

480.  Indication  of  the  non-application  of  the  rule  may  be  either 

direct  or  indirect. 

481.  1.   Direct  explanation  or  indication  that  the  persons  wlio  are 

to  succeed  are  not  persons  who  are  to  take  simply  as  heirs 
general  or  special. 

482.  Loice  V.  Davies,  2  Ld.  Raym.  1561. 

483.  Goodlitle  d.  Sweet  v.  Herring,  1  East,  1G4.  North  v.  Mar- 

tin, 6  Sim.  266. 

484.  2.  Indirect  explanation  or  indication. 

485.  (1)  Word  heir,  with  superadded  words  of  limitation. 

486.  (2)  Limitation  to  the  heir  for  life. 

487.  (3)  Superadded  words  of  limitation  which  limit  the  estate  to 

persons  of  a  dilfercnt  sex. 

488.  (4)  Words   of  distributive    modification,   with   superadded 

words  of  limitation. 

48Sa.  (5)  Words  of  distributive   modification,   with   a  limitation 

over  in  the  case  of  the  death  of  such  issue  under  a  cer- 
tain age. 
Doe  d.  Strong  v.  Goff,  11  East,  668,  and  observations  there- 
on.     Crump  v.  Norwood,  7  Taunt.  362. 

488b.  (6)  Blending  a  limitation   to  the  heirs  special  of  another 

person,  and  superadding  words  of  limitation. 


488c. 


SECTION  V. 


General  Observation  on  the  Aid  afforded,  in  the  Application  of  the 
Rule,  by  implication  from  a  Limitation  over  on  Failure  of  Issue. 


xxxvi  AN  ANALYSIS  OF  THE  FOLLOWING 


SECTION  VI. 

The  *^pplicaiion  and  Non-application  of  the  Rule  in  cases  of  Trusts 

Executory. 

489.  Definition  of  an  executory  trust. 

490.  I.  Rule  as  to  executory  trusts  created  by  will. 

491.  Ground  of  distinction  between  trusts  executed  and  trusts 

executory. 
492 — 93.     Illustrations  of  the  foregoing  rule. 

494.  II.  Rule  as  to  trusts  executory  created  by  marriage  settle- 

ment, with  the  exceptions  thereto, 

495.  Distinction  between  trusts  executed  and  trusts  executory  is 

more  strongly  marked  in  the  case  of  those  created  by 
marriage  settlement. 
496 — 99.     Illustrations  of  the  second  of  the  foregoing  rules. 

500.  1.  Cases  constituting  the  first  exception  to  the  second  of  the 

foregoing  rules. 

501.  2.  Cases  constituting  the  second  exception. 

502.  3.  The  third  exception. 


CHAPTER  XIII. 

THIRD  EXCEPTION  FROM  THE  FOURTH  CLASS  OF  CONTINGENT  RE- 
MAINDERS, WHERE  REAL  ESTATE  IS  DEVISED  TO  A  PERSON  AND 
TO  HIS  ISSUE;  AND  THE  WORD  ISSUE  IS  CONSTRUED  TO  BE  A  WORD 
OP  LIMITATION,  BY  ANALOGY  TO  THE  RULE  IN  SHELLEY's  CASE, 
AND    UNDER    THE    CY    PRES    DOCTRINE. 

503.  Difficulty  of  construing  devises  to  or  for  a  person  and  his 

issue,  express  or  implied. 

504.  I.  Where  the  word  issue  is  a  word  of  limitation,  in  the  case 

of  direct  devises  and  trusts  executed. 

505.  II.  Where  the  word  issue  is  a  word  of  purchase,  in  the  case 

of  direct  devises  and  trusts  executed. 

506.  Rule  embracing  both  the  preceding  rules. 

507.  Different  senses  of  the  word  issue. 

508.  "  Issue"  is  a  word  either  of  purchase  or  of  limitation  in  a 

will ;  but  always  a  word  of  purchase  in  a  deed. 

509.  Why  it  is  a  word  of  purchase  in  a  deed. 
510 — 12.     It  is  ill  adapted  for  a  word  of  purchase, 

513.  But  it  is  well  adapted  for  a  word  of  limitation. 

514.  And  this  is  one  of  the  grounds  of  the  foregoing  rules. 

515.  How  the  testator  may  manifest  an   intention  that  the  word 

issue  should  not  be  a  word  of  limitation. 


ESSAY  ON  EXECUTORY  INTERESTS. 


XXXVll 


516. 


517. 

51S. 
519. 
520. 


521. 
522. 
523—24. 

525— 2G. 


527. 


528. 


529. 


530. 


531. 
532. 
533. 

533a. 


It  is  not  manifested  by  superadding  kindred  words  of  limita- 
tion, or  giving  the  ancestor  an  estate  expressly  for  life,  or 
without  impeachment  of  waste. 

Nor  by  introducing  words  of  contingency  which  would  have 
been  ini|)licd. 

Nor  by  prohibiting  the  ancestor  from  committing  waste. 

These  indications  are  equivocal. 

Another  ground  of  the  foregoing  rules;  nanjely,  two  co-ex- 
isting yet  inconsistent  intents,  the  one  of  which  must  be 
sacrificed  to  the  other. 

Definition  of  the  primary  or  paramount  intent. 

Definition  of  the  secondary  or  minor  intent. 

By  what  the  primary  or  paramount  intent  is  imported  or 
evidenced. 

Observations  showing  the  expediency  and  propriety  of  con- 
struing the  word  issue  as  a  word  of  limitation,  in  order 
to  effectuate  the  primary  or  paramount  intent,  in  cases 
falling  within  the  first  rule. 

Observations  showing  the  propriety  of  construing  the  word 
issue  a  word  of  purchase,  in  cases  falling  within  the  se- 
cond rule. 

There  is  less  presumption  against  construing  issue  a  word  of 
purchase,  than  there  is  against  construing  heirs  a  word  of 
purchase,  and  especially  heirs  generally. 
Illustrations  of  the  first  rule — 

Lyon  V.  Michel,  1  IVIad.  473.  Tate  v.  Clark,  1  Beav.  100, 
and  observations  thereon. 

Illustrations  of  the  second  rule — 

Hockley  v.  Mawbey,  I  Ves.  142.  Doe  d.  Davy  v.  Bin^nsall, 
6  D.  &  E.  30.  Doe  d.  Gilman  v.  Elvey,  4  East,  313. 
Merest  v.  James,  4  Moore,  327.  S.  C.  1  Brod.  &  Bing. 
127,  and  observations  thereon.  Lees  v.  Mosley,  1  You. 
&  Col.  589.  Ciirsham  v.  Newland,  2  Beav.  145.  Doe 
d.  Cooper  v.  Collis,  4  D.  &  E.  294,  and  observations 
thereon. 

III.  Trusts  executory  created  by  marriage  settlement. 

IV.  Trusts  executory  created  hy  will. 

V.  Where  the  two  limitations  are  not  both  legal,  or  both 
equitable. 

VI.  Where  the  issue  cannot  take  by  purchase,  on  account  of 
the  rule  against  perpetuities. 


534—5. 


CHAPTER  Xn' 


FOURTH  EXCEPTION  FKOM  THE  FOURTH  CLASS  OF  CONTINGENT  RE- 
MAINDERS, UNDER  THE  CY  PRES  DOCTRINE,  WHERE  REAL  ESTATE! 
IS    DEVISED    TO    THE    CHILDREN    OF    AN    UNBORN    CHILD. 


xxxviii  AN  ANALYSIS  OF  THE  FOLLOWING 


CHAPTER  XV. 

FIFTH  EXCEPTION  FROM  THE  FOURTH  CLASS  OF  CONTINGENT  RE- 
MAINDERS, UNDER  THE  CY  PRES  DOCTRINE,  IN  THE  CASE  OP  AN 
INTENDED    PERPETUAL    SUCCESSION    OF    LIFE    ESTATES. 

536.  I.  Perpetual  succession  of  life  estates,  by  way  of  executory 

trust,  in  favour  of  unborn  descendants. 
536a.  II.  Perpetual  succession  of  life  estates  in  favour  of  children 

in  esse  and  more  remote  descendants. 
Wollenv.^lndrewes,  2  Bing.  126,  and  observations  thereon. 
Brooke  v.  Turner,  2  Bing.  New  Cas.  422. 
536b.  III.  Limited  number  of  life  estates. 

Seaward  v.  WillocJe,  5  East,  59S,  and  observations  thereon. 


CHAPTER  XVI. 

SIXTH  EXCEPTION  FROM  THE  FOURTH  CLASS  OF  CONTINGENT  RE- 
MAINDERS, UNDER  THE  CY  PRES  DOCTRINE,  WHERE  THE  WORD 
SON  OR  CHILD,  IN  A  DEVISE  OF  AN  ESTATE  IN  REMAINDER,  IS 
CONSTRUED    AS    A    WORD    OP    LIMITATION. 

537.  The  rule  stated. 

Doe  d.   Garrod  v.   Garrod,  2  Bar.   &  Adol.   87.     Doe  d. 
Jofies  V.  Duvies,  4  Bar.  &  Adol.  43. 


CHAPTER  XVII. 

CASES  OF  AN  ESTATE  TAIL,  BY  IMPLICATION  SIMPLY,  OR  BOTH  BY 
IMPLICATION  AND  BY  ANALOGY  TO  THE  RULE  IN  SHELLEY's  CASE, 
WITH  A  VESTED  REMAINDER  OVER,  IN  REAL  PROPERTY,  DISTIN- 
GUISHED FROM  CASES  OF  A  LIFE  ESTATE,  AND  A  CONTINGENT  RE- 
MAINDER OVER,  EITHER  WITH  OR  WITHOUT  AN  ALTERNATIVE 
limitation;  or  of  a  life  estate,  WITH  A  LIMITATION  OVER  OF 
A  SPRINGING  interest;  OR  OF  A  FEE,  WITH  A  CONDITIONAL  LIMI- 
TATION   OVER. 

SECTION  I. 

Rules  for  delermining  whether  an  Indefinite  Failure  of  Issue  is 
meant,  or  merely  a  Failure  of  Issue  within  a  certain  Time,  in 
cases  of  a  Limitation  over  on  a  Failure  of  Issue. 

538.  I.  In  devises  of  real  estate  before   1838,  the  words  "die 

without  issue,"  "die  without  leaving  issue,"  "in  de- 
fault," or,  "on  failure,"  or,  "for  want  of  issue,"  were 
all  held  to  import  an  indefinite  failure  of  issue. 


ESSAY  ON  EXECUTORY  INTERESTS.  xxxix 

539.  II.  Ikit  ill  bequests  of  personal  estate  before  1838,  the  words 

"die  without  leaving  issue,"  were  not  so  construed,  though 
the  other  expressions  were  construed  in  that  manner. 
Foley  V.  Irvin,  2  B.  &  B.  435.  Radford  v.  liadford,  1  Keen, 
486. 

540.  III.  Where  the  devise  to  the  issue  male  is  introduced  by 

words  of  contingency,  and  the  limitation  over  is  an  alter- 
native, to  take  effect  in  the  opposite  event  of  there  being 
no  son. 
Loddinglnii  v.  Khne,  1  Salk.  224. 

541.  IV.  Where  the  devise  is  to  the  children  of  the  prior  taker, 

equally,  and  their  heirs,  with  a  limitation  over  in  case  he 
should  die  without  issue,  which  is  an  alternative. 

542.  V.  Where  the  devise  is  to  the  issue  of  the  prior  taker,  and 

their  heirs,  with  a  limitation  over  in  case  he  should  die 
without  issue,  or  all  sucii  issue  should  die  without  issue; 
which  is  both  an  alternative  and  a  remainder  after  an 
estate  tail. 

543.  VI.  Words  referring  to  a  failure  of  such  issue,  import  an  in- 

definite failure  of  issue,  or  not,  according  to  the  degree  of 
comprehensiveness  of  the  antecedent  expressions. 

1.  They  do,  where  such  expressions  comprise  all  the  issue 
generally,  or  male  or  female. 

2.  They  do  not,  where  such  expressions  comprise  some  only 
of  the  issue  generally,  or  male  or  female. 

«  As  where  the  devise  is  to  the  sons,  daughters,  or  children  of 
the  prior  taker. 

544.  (1)  ^VIlere  they  would  take  the  fee,  the  limitation  over  in  de- 

fault of  such  issue,  &c.,  is  an  alternative. 
The  King  v.  the  Marquis  of  Stafford,  7  East,  521. 

545.  (2)  Where  they  would  take  life  estates,  such  limitation  over 

is  a  remainder  capable  of  taking  effect  either  as  an  alter- 
native, or  as  a  remainder. 
Goodright  d.  Lloyd  v.  Jones.  4  Mau.  &  Sel.  88.     Foster  v. 
Lord  Ro77iney,  11  East,  594.     Hay  v.  Lord  Coventry,  3 
D.  &  E.  83. 

546.  (3)  Where  they  would  take  estates  tail,  such  limitation  over 

is  a  remainder  capable  of  taking  effect  either  as  an  alter- 
native or  as  a  remainder. 
Lady  Dacre  v.  Doe,  in  error,  8  D.  &  E.  112;  Lewis  d.  Or- 
mond  V.  Waters,  6  East,  336. 

547.  VII.  Where  the  issue  are  referred  to  by  the  name  of  chil- 

dren, and  thereby  explained  to  mean  children. 
Ellis  v.  Sclby,  7  Sim.  352. 

548.  VIII.  Where  the  issue  are  so  referred  to  in  the  limitation  of 

one  moiety,  but  not  in  the  limitation  of  another  moiety. 
Carter  v.  Bent  all,  2  Beav.  551 ;  Kirkpa  trick  v.  Kirkpatrick, 
13  Ves.  476. 


xl  AN  ANALYSIS  OF  THE  FOLLOWING 

549.  IX.  Where  the  property  is  Hmited  over  on  death  under  a 

certain  age,  without  issue. 
Toovey  v.  Basset t,  10  East,  460. 

550.  X.  Wiiere  a  devise  over  is  on  death  within  a  Hmited  period, 

or  without  issue,  and  or  is  construed  and. 

551.  XI.  Where  a  devise  over  is  on  tlie  prior  taker's  death  under 

a  certain  age,  or  on  his  subsequent  death  without  issue. 

552.  XII.  Where  a  devise  over  is  in  the  event  of  death  whhout 

leaving  issue,  or  having  such  issue,  of  such  issue  dying 
under  a  certain  age  without  issue. 
Beachcroft  v.  Broome,  4  D.  &  E.  441. 
553 — 4.       XIII.  Where  a  bequest  over  is  to  the  survivor,  without  words 
of  limitation. 

555.  XIV.  Where  a  bequest  over  is  to  the  survivor,  with  words 

of  hmitation. 
Massey  v.  Hudson,  2  Meriv.  1 30. 

556.  XV.  Where  property  is  bequeathed  to  two  sisters,  with  a 

limitation  over,  on  the  death  of  one  without  issue,  to  her 
sister. 

557.  XVI.  Where  it  is  directed  that  the  property  shall  go  over 

after  the  prior  taker's  decease. 

558.  XVII.  Where  a  limitation  over  is  preceded  by  a  bequest  to 

such  of  the  prior  taker's  issue  as  he  shall  appoint  to, 

559.  XVIII.  Where  all  the  ulterior  limitations  are  for  life  only. 
Barlow  v.  Sailer,  7  Ves.  483.    Boeh?n  v.  Clarke,  9  Ves.  580. 

560.  XIX.  Where  the  devise  over  is  for  payment  of  debts. 

561.  XX.  Where  the  estate  is  subject  to  the  payment  of  a  sum  to 

be  disposed  of  by  the  will  of  the  prior  taker. 
Smilh  V.  Webber,  1  Bar.  &  Aid.  713.    Doe  d.  King  v.  Frost, 
3  Bar.  &  Aid.  546. 

562.  XXI.  Where  a  term  for  raising  legacies  is  limited  on  the 

expiration  of  an  estate  tail,  and  the  legacies  are  held  to 
be  given  on  the  same  event. 
Morse  v.  Lord  Ormonde,  1  Riiss.  382. 

563.  XXII.  Enactment  of  Vict.  c.  26,  s.  29. 

SECTION  II. 

Cases  of  a  Limitation  over  on  an  Indefinite  Failure  of  Issue  of  a 
Prior  Taker,  where  there  is  no  Express  Devise  to  his  Issue. 

564.  Rule  of  construction. 

564a.  The  principle  of  this  construction. 

564b.  Two  co-existing  yet  inconsistent  intents;  namely,  the  pri- 

mary or  paramount  intent,  and  the  secondary  or  minor 
intent,  which  is  sacrificed  to  the  former. 

564c.  How  the  primary  or  paramount  intent  is  manifested. 

564cl — 8.  This  construction  is  adopted  whether  the  prior  limitation  is 
expressly  in  fee,  or  indefinite,  or  for  life. 


ESSAY  ON  EXECUTORY  INTERESTS.  xli 

Chapman  d.  Scholes  v,  Scholes,  2  Cliitty,  643.  Uoin  d. 
Slater  V.  Slater,  5  D.  &  E.  335.  Doe  d.  Nevile  v.  Rivers, 
7  D.  &  E.  276.  Doe  d.  Ellis  v.  Ellis,  1  East,  382.  7'<?/i;?y 
d.  Jigar  V.  Jls^ar,  12  East,  252.  Romilly  v.  James,  6 
Taunt.  263.  fjansey  v.  Griffiths,  \  Man.  &  Sel.  61.  />oc 
d.  Jones  v.  Owens,  1  Bar.  &  yVd.  3 IS.  7>je  d.  Ca(loa;nn  v. 
Ewart,  7  Ad.  &  El.  636.    Machell  v.  JVeeding,  8  Sim.  4. 

SECTION  III. 

Cases  of  a  Limitation  over  on  an  Indefinite  Failure  of  Issue  of  a  Prior 
Taker,  lahere  there  is  an  express  Devise  to  his  Issue,  eo  nomine. 

569.  I.  Where  the  ancestor  takes  an  estate  tail  in  possession. 
Franklin  v.  Lay,  6  Mad.  258.     Murthivaitev.  Barnard,  2 

Jirod.  &  Bing.  623.     S.  C.  nom.  Murthwaite  v.  Jenkinson, 

2  Bar.  &  Cres.  35.9. 

570.  It  is  immaterial,  in  the  supposed  case,  whether  the  expres- 

sion in  the  devise  over  is  "  issue  "  indefinitely,  or,  "  such 
issue." 
Denn  d.  JVcbb  v.  Puckcy,  5  D.  &  E.  299.     Frank  v.  Slovin, 

3  East,  548.     Marshall  v.  Bousficld,  2  Mad.  166. 

571.  II.  Where  (upon  principle)  the  ancestor  would  take  an  estate 

tail  in  remainder. 

572.  Absurdity  of  contrary  doctrine. 

573.  Observations  on  the  fact  that  there  are  decisions  in  support  of 

the  contrary  doctrine. 
Doe  d.  Blandford  v.  JippUn,  4  D.  &  E.  82,  and  observations 
thereon.     Doe  d.  Cock  v.  Cooper,  1  East,  229,  and  obser- 
vations diereon.      Ward  v.  Bevil,  1  You.  &  Jer.  512,  and 
observations  thereon. 
574 — 5.       III.  Where  no  estate  tail  can  be  raised  in  remainder. 

SECTION  IV. 

Cases  of  a  Limitation  over  on  an  Indefinite  Failure  of  issue  of  a  Prior 
Taker,  where  there  is  an  E.vpress  Devise  to  his  Sons,  Daughters,  or 
Children. 

576.  I.  Where  (upon  principle)  the  ancestor  would  take  an  estate 

tail  in  remainder. 

577.  Rules  deduced  by  Mr.  .larman  from  the  cases. 
578 — 9.       Observations  on  these  rules. 

Parr  v.  Swindells,  4  Rnss.   283.     Franks  v.   Price,  Bing. 
New  Cas.  37,  and  observations  thereon. 
580.  Suggested  result  of  the  preceding  cases  and  remarks. 

Observations  of  Lord  Chief  Baron  Richards  on  the  intention 
of  testators. 
581 — 2        II.  Where  there  can  be  no  estate  tail  in  remainder. 
Vol.  li.— F 


xlii  AN  ANALYSIS  OF  THE  FOLLOWING 

583.  III.  Where  the  ancestor  will  take  an  estate  tail  in  possession. 
Mortimer  v.  JVest,  2  Sim.  274. 

SECTION  V. 

Cases  of  a  Limitation  over  on  a  Failure  of  Children  only  of  the  Prior 
Taker,  or  on  a  Failure  of  Issue  ivithin  a  certain  Time. 

584.  Rule  stated. 

Doe  d.  Barnfield  v.  Wetton,  2  Bos.  &  Pul.  324.     Bennett  v. 
Lowe,  7  Bing.  535. 

SECTION  VI. 

Cases  of  a  Limitation  over  on  an  Indefinite  Failure  of  Issue  of  a 
Person  to  whom  no  Express  Devise  is  made. 

585.  I.  Where  the  person  whose  failure  of  issue  is  spoken  of  is 

the  testator's  heir  apparent  or  presumptive,  and  he  takes 
an  estate  tail. 

586.  Reasons  for  this  construction. 

587.  This  construction  not  allowed  in  Lanesborough  v.  Fox,  but 

admitted  in  other  cases. 
Daintry  v.  Daintry,  6  Burn  &  East,  307. 

588.  II.  Where  the  person  whose  failure  of  issue  is  spoken  of  is 

not  the  testator's  heir  apparent  or  presumptive,  and  he 
does  not  take  an  estate  tail. 

589.  Reasons  for  this  construction. 

CHAPTER  XVIII. 

CASES  OF  A  VESTED  REMAINDER  AFTER  A  LIFE  ESTATE,  BY  IMPLICATION, 
DISTINGUISHED  FROM    CASES  OF  A  SPRINGING  INTEREST. 

590.  I.  Devise  to  testator's  heir  apparent  or  presumptive  after  the 

death  of  another  to  whom  no  devise  is  made,  gives  to  the 
former  a  remainder. 

591.  II.  A  similar  devise  to  the  residuary  devisee  has  the  same 

effect. 

592.  III.  But  a  similar  devise  to  one  who  is  neither  heir  apparent 

or  presumptive,  nor  residuary  devisee,  gives  him  a  spring- 
ing interest. 

CHAPTER  XIX. 

LIMITATIONS  OF  PERSONAL  ESTATE,  SIMILAR  TO  LIMITATIONS  WHICH 
WOULD  CREATE  AN  ESTATE  TAIL  IN  REAL  ESTATE,  ACCORDING  TO 
THE  TWELFTH,  THIRTEENTH,  AND  SEVENTEENTH  OF  THE  FOREGOING 
CHAPTERS. 

593.  Chattels  cannot  be  entailed. 
593a.          General  rule  resulting  from  this. 


ESSAY  ON  EXECUTORY  INTERESTS.  xliii 

593b.  I.  Bequests  to  or  for  a  person  and  the  Iieirs  of  his  body. 

594.  II.  Limitations  to  or  for  a  person,  for  life,  with  remainder  to 

the  heirs  of  his  body,  which  would  create  an  estate  tail  in 
real  property. 

595.  Grounds  of  the  rule. 

Ellon  V.  Edson,  1  9  Ves.  73.     Britton  v.  Twining,  3  Meriv. 
17G. 

596.  III.  Limitations  to  or  for  a  person  for  life,  with  remainder 

to  the  heirs  of  his  body,  which  would  not  create  an  estate 
tail  in  real  property. 
Wilkinson  v.  South,  7  D.  &.  E.  555. 

597.  IV.  Disposition  in  favour  of  a  person  and  his  issue,  which 

would  create  an  estate  tail  in  real  property. 
Donn  V.  Penny,  1  jNIeriv.  20.     ^U.  Gen.  v.  Bright,  2  Keen, 
57.     Gibbs'v.   Tail,  S  Sim.   132.       Turner  v.  Cupel,  9 
Sim.  158. 
597a.  V.  Disposition  in  favour  of  a  person  and  his  issue,  which 

would  not  create  an  estate  tail  in  real  property. 

598.  VI.  Executory  trusts  in  favour  of  a  person  and  his  issue. 
Slonor  V.  Curiuen,  3  Sim.  2G4. 

599.  VII.  Limitations  over  on  an  indefinite  failure  of  issue. 

GOO.  VIII.  Limitations  over  on  failure  of  children  only,  or  of  issue 

within  a  given  time. 
Statu  v.  Muule,  2  Sim.  490.    Bradshaw  v.  Skilbeck,  2  Bing. 
New  Cas.  182. 


CHAPTER  XX. 

LIMITATIONS  OF  PERSONAL  ESTATE  TO  OR  IN  TRUST  FOR  THE  PERSONS 
WHO  SHALL  FROM  TIME  TO  TIME  BE  ENTITLED  TO  REAL  ESTATES 
ENTAILED. 

601.  1.    Where  such  limitations  are  not  by  way  of  executory 

trust. 
Fordyce  v.  Ford,  2  V^es.  536.    Ware  v.  Polhill,  1 1  Ves.  257. 

602.  II.  Where  the  disposition  is  by  way  of  executory  trust. 

603.  The  distinction  exhibited  in  these  two  rules  is  in  accordance 

with  the  distinction  made  in  other  cases. 
604 — 6.       The  grounds  of  the  distinction. 
607.  Executory  trusts  should  be  construed  according  to  the  second 

rule; 
60S.  especially  when  created  by  marriage  settlement  or  articles. 

609 — 13.     A  gift  through  the  medium  of  a  direction,  is  not  uecessarily 

a  trust  executory. 

614.  The  words  "  so  far  as  the  rules  of  law  will  permit,''  preclude 

any  intendment  contrary  to  law. 

615.  Hut  they  do  not  enable  the  Court  to  tie  up  chattels  for  any 

longer  time. 


xliv  AN  ANALYSIS  OF  THE  FOLLOWING 

61G.  Duke  of  Nciccasth  v.   Countess  of  Lincoln,  3  Ves.   387. 

Countess  of  Lincoln  v.  Duke  of  Newcastle,  12  Ves.  218. 

617.  Difference  of  opinion  among  the  Judges. 

618.  Observations  of  Lord  Loughborough. 

619.  Observations  of  Lord  Eldon  in  the  same  case, 

620.  and  in  Jerv'oise  v.  Duke  of  Northumlicrland. 

621 — 2.       Meaning  of  the  expressions  used  by  Lord  Loughborough. 
^2'i.  An  executory  trust  by  will  ought  not  to  be  construed  so  as 

to  confer  an  indefeasible  vested  interest  on  the  first  tenant 

in  tail  at  his  birth. 

624.  And  in  fact  no  such  construction  of  an  executory  trust  has 

been  adopted. 
Foley  V.  Burnell,  1  Bro.  C.  C.  274,  was  not  an  executory 
trust.     Nor  was  Vavghan  v.  Burslem,  3  Bro.  C.  C.  101. 
Nor  was  Carr  v.  Lord  Erroll,  14  Ves.  478. 

625.  Lord  Eldon  supposed  that  directory  trusts  were  synonymous 

with  executory  trusts. 
626 — 8.       Objection  urged  by  Lord  Eldon. 
629 — 30.     Observations  on  some  other  remarks  of  Lord  Eldon. 

631.  Observations  of  Lord  Erskine. 

632.  Remarks  thereon. 

Gower  v.  Grosvenor,  5  Mad.  347. 

633.  Observations  thereon. 

634 — 7.       Concluding  observations  on  the  cases  above  cited. 


CHAPTER  XXI. 

WORDS  APPARENTLY  AMOUNTING  TO  A  MERE  ALTERNATIVE  LIMITATION, 
BUT  IN  REALITY  CONSTITUTING  A  REMAINDER  ;  AND  VICE  VERSA. 

SECTION  I. 

638 — 45.  Ji  General  Rule  suggested. 

SECTION  II. 
Certain  Rules  of  a  more  Specific  Character. 

646.  Devise  to  a  person,  and  his  issue,  or  his  sons,  daughters,  or 

children,  with  a  limitation   over  on  his  death  without 
issue,  &c. 

647.  I.  Where  the  ancestor  or  his  issue  take  an  estate  tail,  or  the 

issue  take  a  life  estate  in  remainder,  and  such  estate  is 
vested  and  absolutely  limited. 
Jishley  V.  Jisldey,  6  Sim.  358.    Doe  d.  Jearrodv.  Bannister, 
7  Mees.  &  W.  292. 

648.  II.  Where  sucli  estate  is  contingent,  or  hypothetically  limi- 

ted. 

649.  III.  Where  such  estate  is  in  fee. 


ESSAY  ON  EXECUTORY  INTERESTS.  x\v 


CHAPTER  XXir. 

CERTAIN     CASES    OF     CONDITIONAL     LIMITATIONS     DISTINGUISHED     FROM 
CASES  OF  MEKE   ALTERNATIVE  LIMITATIONS;    AND  VICE  VERSA. 

SECTION  I. 

Certain  General  Rules  syggeslcd. 

650.  Introductory  observations. 

G51 — 4.       I.  Wlicre  the  prior  interest  in  fee  is  not  vested  and  absolute- 
ly limited,  and  the  subsequent  limitation  is  an  alternative. 
Murray  v.  Jlddenhrook,  4  Russ.  407. 

655.  II.  Where  the  prior  interest  is  vested  and  absolutely  limited, 

and  the  subsequent  limitation  is  a  conditional  limitation. 
Slurgess  v.  Pearson,  4  Mad.  413,  and  observations  thereon. 
Brotvne  v.  Lord  Kenyan,  3  Mad.  410,  and  observations 
thereon.  Bromhead  v.  Hunt,  2  Jac.  &  Walk.  463.  Howes 
V.  Herring,  M'Clel.  &  You.  295,  and  observations  there- 
on. 

SECTION  II. 

Certain  Specific  liules  as  to  the  Period  to  which  the  Event  of  Heath, 
when  mentioned  as  if  it  were  a  Contingent  Event, is  to  be  referred. 

656 — 7.  I.  Where  personal  estate  is  limited  over  '-'in  case"  or  "in 
the  event  of"  death,  and  the  death  is  held  to  be  a  death 
in  the  testator's  lifetime. 
Hinckley  v.  Siminons,  4  Ves.  160,  and  observations  there- 
on. Ca?)ibridge  v.  Pons,  8  Ves.  12.  Slade  v.  Milner, 
4  Mad.  144.  Ommaney  V.  Bevan,  IS  Ves.  291.  Crigafi 
V.   Baines,   7   Sim.   40.      Lord   Douglas   v.    Chalmer, 

2  Ves.  Jun.  500. 

658.  II.  Where  personal  estate  is  so  limited  over,  and  the  death 

is  held  to  be  a  death  in  the  lifetime  of  a  prior  taker. 
Hervey  v.   M'Laughlin,  1   Tri.   264.      Clarke  v.    Gould, 
7  Sim.  197.    Le  Jeune  v.  Le  Jettne,  2  Beav.  701,     Smith 
V.  Smith,  8  Sim.  353.     Giles  v.  Giles,  8  Sim.  360. 

659 — 60.     III.  W^iere  personal  estate  is  so  limited  over,  and  the  death 
is  held  to  be  a  death  at  some  other  period. 

661.  IV.  Where  the  gift  over  is  introduced  by  other  words  of 

contingency. 
King  V.    Taylor,  5  Ves.  806.      Turner   v.  Moor,   6   Ves. 
556.      JVebster  v.   Hale,  S  Ves.  410.     Smart  v.   Clark, 

3  Russ.  365. 

662.  V.  Where  the  gift  over  is  not  simply  on  the  event  of  death. 

663.  Grounds  of  the  rule. 

Doe   d.    Lifford  v.    Sparrow,   13  Ves.    359.     Galland  v. 


xlvi  AN  ANALYSIS  OF  THE  FOLLOWING 

Leonard,!  Swans.  IGl.  S.  C.  1  Wils.  129.  Home  v. 
Pillans,  2  M.  &  K.  15.  Monteith  v.  Nicholson,  2  Keen, 
719,  and  observations  thereon. 

664.  VI.  The  same  construction  seems  appUcable  to  real  estate. 

665.  Exception. 

666.  There  is  however  a  decision  against  the  application  of  this 

construction  to  real  estate.     But  perhaps  that  decision  is 
questionable. 
Boives  V.  Scoiucrqft,  2  You.  &  Coll.  640,  and  observations 
thereon. 


CHAPTER  XXIII. 

CERTAIN  CASES  OF  VOID  CONDITIONAL  LIMITATIONS  DEPENDING  ON  THE 
NON-DISPOSAL  OF  PROPERTY,  DISTINGUISHED  FROM  LIMITATIONS  IN 
DEFAULT  OF  APPOINTMENT. 

667.  The  rule  stated. 

Ross  V.   Ross,  1  Jac.  &  Walk.  158.     Cuthbert  v.  Turrier, 
Jac.  415. 


CHAPTER  XXIV. 

LIMITATIONS   OPERATING   DIFFERENTLY    IN    REGARD    TO  ANOTHER    LIMI- 
TATION   IN    DIFFERENT    EVENTS. 

668.  I.  An  interest  may  be  limited  to  take  effect  either  as  an 

alternative,  or  as  a  remainder  or  quasi  remainder. 
668a.  II.  An  interest  shall,  if  possible,  be  construed  as  a  remain- 

der or  quasi  remainder,  as  well  as  an  alternative. 
Brownsword  v.  Edwards,  2  Ves.  243. 

669.  III.  Every  remainder  or  quasi  remainder  has  the  effect  of 

an  alternative  limitation,  in  case  the  preceding  interest 
never  vests. 
Toldervy  v.    Coll,   1   You.  &  Coll,  621,  and   observations 
thereon. 
669a.  Consequence  of  the  above  rule,  as  regards  chattels  which 

are  to  go  to  the  persons  entitled  to  real  estates  entailed. 

670.  Instance  of  a  remainder  taking  effect  as  such,  though  taking 

efiect  as  an  alternative  as  regards  the  possession. 
670a.  IV.  An  interest  may  be  limited  to  take  effect  either  as  an 

alternative  or  as  an  interest  under  a  conditional  limita- 
tion. 

671.  V.  A  mere  conditional  limitation  will  have  the  effect  of  an 

alternative,  if  the  prior  interest  never  vests. 
671a.  So  also  will  a  limitation  of  a  springing  interest  of  the  seventh 

kind. 


ESSAY  ON  EXECUTORY  INTERESTS.  xlvii 

672.  Principle  of  the  third  and  liflli  rules. 

Meadows  v.  Parry,  1  V.  &  B.  124.     Murray  v.  Jones,  2  V. 
&  B.  313.     Mackiniwn  v.  Setvell,  2  M.  &  K.   202,  and 
observations  thereon.  Mackinno7iv.  Peach, 2  Keen,  555. 
fVilson  V.  Mount,  2  Beav.  397. 
672a.  Exception. 

Routledge  v.  Dorril,  2  Ves.  Jun.  35G. 

673.  \'I.  Conditional    limitation    becoming   a   remainder   in   the 

room  of  a  preceding  remainder  in  fee. 
Doe  d.  Harris  v.  Howell,  10  Bar.  &  Cres.  197,202, 

674.  VII.  A  fntnre  interest  is  not  construed  an  interest  under  a 

conditional  limitation  or  a  springing  interest,  wlien  it  can 
be  construed  a  remainder. 

675.  But  when   the   preceding   freehold  fails,  a  future  interest, 

wjiich  would  otherwise  liave  been  a  remainder,  is  con- 
strued a  springing  interest. 

676.  And  an  ulterior  interest  in  remainder  also  becomes  a  spring- 

ing interest,  abstractedly  regarded,  though  it  is  a  remain- 
der as  regards  the  less  remote  springing  interest. 

677.  And  so,  in  other  cases,  until  a  less  remote  future  interest 

vests,  an  ulterior  interest  in  remainder  is  a  springing  in- 
terest, abstractedly  considered,  though  it  is  a  remainder  as 
regards  such  less  remote  future  interest. 
Doe  d.  Scolt  V.  Roach,  5  Mau.  &  Sel.  4S2. 


CHAPTER  XXV. 

LIMITATIONS    OPERATING    DIFFERENTLY    IN     REGARD    TO     DIFFERENT 

LIMITATIONS. 

678 — SI.     I.  The  same  limitation  may  be  a  remainder,  an  alternative, 

and  a  conditional  limitation. 
682.  II.  The   same    limitation   may   be   an   alternative   and  an 

augmentative  limitation,  or  a  limitation  of  a  springing 

interest. 
682a.  III.  Every  more  remote  limitation  may  be  a  remainder  as 

regards  a  prior  limitation,  though  not  limited  next  after  it. 
Dot  d.  Herbert  v.  Selby,  2  Bar.  &.  Cres.  926. 


.CHAPTER  XXVI. 

LIMITATIONS    INTENDED    TO    OPERATE   IN   DIFFERENT    WAYS    IN    REGARD 
TO    DIFFERENT    PORTIONS    OF    PROPERTY. 

683.  Limitations  may  operate  in  this  way. 

684.  I.  A  limitation  may  be  penned  so  as  to  operate  as  a  condi- 


xlviii  AN  ANALYSIS  OF  THE  FOLLOWING 

tional  limitation  and  as  a  limitation  of  a  springing  interest, 
in  regard  to  different  portions  of  property. 

685.  II.  A  limitation  may  be  so  penned  as  to  operate  as  an  alter- 

native and  as  another  kind  of  limitation,  in  regard  to  dif- 
ferent portions  of  property. 

686.  Objection. 

687.  Malcolm  v.  Taylor,  2  Russ.  &  M.  416,  and  observations 

thereon. 


PART  in. 


RULES  AND  PRINCIPLES  RELATING  TO  MISCELLANEOUS  POINTS 
IN  THE  LEARNING  OF  EXECUTORY  INTERESTS. 


CHAPTER  I. 

OF  THE  EFFECT  OF  THE  NON-FULFILMENT  OF  CONDITIONS 
PRECEDENT  AND  MIXED. 

688.  I.  Effect  of  the  non-fulfilment  of  direct  conditions  precedent 

and  mixed,  where  the  limitation  is  not  a  mere  alternative, 
as  regards  the  interest  to  be  created, 

689.  and  as  regards  the  interest  to  be  defeated. 

690.  1.  Where  the  event  happens  under  other  circumstances  than 

those  specified,  and  the  limitation  is  not  a  mere  alternative 
limitation. 
Holmes  v.  Cradock,  3  Ves.  317.   Parsons  v.  Parsons,  5  Ves. 
578.     Dicken  v.  Clarke,  2  You.  &  Coll.  572. 

691.  2.  Where  a  limitation  over  is  on  the  not  leaving  issue,  gene- 

rally, and  not  merely  on  the  not  leaving  issue  who  can 
take  under  the  prior  limitations. 
Doe  d.  Beiv  v.  Lucraft,  8  Bing.  386.     Andree  v.  Ward,  1 
Russ.  260. 
692 — 93.     II.  Effect  of  the  non-existence  of  the  objects  of  a  conditional 
limitation. 
Smither  v.  Willock,  9  Ves.  233.     Harrisson  v.  Foreman^ 
5  Ves.  206. 

694.  III.  Where  the  limitation  is  a  mere  alternative  limitation. 

695.  Principle  of  the  distinction. 

Prcstwidge  v.  Groomhridge,  6  Sim.  171.     Jliton  v.  Brooks, 
7  Sim.  204,  and  observations  thereon. 


ESSxW  ON  EXECUTORY  INTERESTS.  xlix 


CHAPTER  II. 

OF  THE  EFFECT  OF  THE  ORIGINAL  INVALIDITY  ON  THE  EVENTUAL 
IMPOSSIBILITY  OF  CONDITIONS. 

696.  What  conditions  are  void. 

1.  Morally  wrong  or  civilly  unlawful. 

2.  Repugnant  to  a  rule  of  law, 

3.  Contrariant  in  themselves. 

4.  Uncertain  or  ambiguous. 

5.  Restraining  from  suffering  a  recovery  or  levying  a  fine 
within  the  stat.  4  Hen.  VII,  and  32  Hen.  VIII. 

6.  Impossible. 

7.  Too  remotely  possible, 

697 — 8,  What  is  too  remote  a  possibility. 

699.  I.  Effect  of  the  invalidity  of  conditions  precedent. 

700.  II.  Elfect  of  the  invalidity  of  conditions  subsequent. 
700a,  III.  Effect  of  the  invalidity  of  a  mixed  condition. 

701.  IV.  Effect  of  the  invalidity  of  a  special  or  collateral  limita- 

tion. 


CHAPTER  III. 

OF  THE  TIME  FOR  THE  VESTING  OF  REMAINDERS. 

702.  I,  A  remainder  must  vest  during  or  on  the  determination  of 

the  particular  estate. 

703.  Grounds  of  the  rule. 

703a,  II.  A  remainder  may  fail  as  to  one  part  only. 

703b.  HI.  A  remainder  may  fail  as  to  some  persons  only, 

704.  A  remainder  when  it  has  vested  in  possession,  and  not  merely 

in  interest,  in  some  persons,  cannot  open  and  let  in  others. 

705.  Grounds  of  the  rule. 

Moss  V.  Moss,  1  iNIeriv.  Go  1,  and  observations  thereon. 

CHAPTER  IV, 

OF  THE  TIME    FOR  THE  VESTING  OF  EXECUTORY  INTERESTS  NOT  LIMITED 
nv  WAY  OF   REMAINDER, 

SECTION  I. 

The  General  Rule  a,s;ainst  Perpetuities  stated  and  explained. 

706.  The  rule  stated. 

707.  Reason  for  fixing  a  limit, 

708.  Reason  for  adopting  the  limits  fixed  bv  the  rule. 
Vol.  II.— G 


713. 

714. 

715- 

-16 

717. 

718. 

719. 

AN  ANALYSIS  OF  THE  FOLLOWING 


SECTION  II. 

Rules  of  a  more  Specific  Character  for  determining  whether  or  not  a 
Limitation  is  too  Remote. 

709.  I.  A  limitation  must  be  such  as  must  take  effect  within  the 

prescribed  period,  if  at  all. 

710.  Hence  limitations  to  children  of  persons  not  in  esse  at  the 

date  of  the  will  are  not  good. 
Arnold  v.  Congreve.,  1  Rnss.  &  M.  209. 
710a.  Nor  are  clauses  designed  indirectly  yet  virtually  to   limit 

estates  to  the  issue  of  the  unborn  person  as  purchasers. 

711.  II.  But  limitations  to  unborn  children  of  persons  in  esse  are 

good. 

712.  It  has  been  thought  that  a  life  interest  cannot  be  limited  to 

an  unborn  person. 
Hayes  v.  Hayes,  4  Russ.  311,  and  observations  thereon. 
An  estate  for  life  may  be  limited  to  an  unborn  person. 
III.  Limitations  on  an  indefinite  failure  of  issue. 
Two  preliminary  questions. 
Answer  to  these,  as  regards  real  estate. 
Answer  to  the  first  question,  as  regards  personal  estate. 
Personal  estate  cannot  be  entailed,  and  a  limitation  over  on 

an  indefinite  failure  of  issue  is  void  for  remoteness. 
The  construction  of  such  a  limitation  is  the  same,  where  the 

prior  taker  has  a  life  interest  only, 
Everest  v.  Gell,  1  Ves.  286.     Chandless  v.  Price,  3  Ves.  98. 

Campbell  v.   Harding,  2  Russ.  &  M.  411.     Candy  v. 

Campbell,  2  CI.  &  Fin.  421.     Monkhouse  v.  MonJehouse, 

3  Sim,  119.     Dunk  v.  Fenner,  2  Russ  &  M.  566,  and 

observations  thereon. 
719a.  IV.  Limitations  over  on  failure  of  heirs. 

Griffiths  V.  Grieve,  1  Jac.  &  Walk.  31. 

720.  V.  Trusts  of  a  term  limited  previous  to  an  estate  tail. 

721.  VI.  Interests  to  vest  on  the  sustaining  a  certain  character. 
Lord  Deer  hurst  v.  Duke  of  St.  Alban's,  5  Mad.  232.  S.  C. 

7iom.  ToUemache  v.  Lord  Coventry,  2  Clark  &  Fin.  611. 
Ibbetson  v.  Ifjbetson,  10  Sim.  495.  Bankes  v.  Le  Des- 
pencer,  10  Sim.  576. 

722.  VII.  Where  the  vesting  of  a  devise   or  bequest  to  a  class  is 

suspended  till  a  certain  age,  and  some  of  them  may  not 
be  in  esse  till  too  late  a  period. 
Lehke  v.  Robinson,  2  Meriv.   363.     Porter  v.  Fox,  6  Sim. 
485.     Dodd  V.  fVake,  8 'S\m.  61 5.     Newman\.  Newman, 
10  Sim.  51.     Cromek  v.  Liimb,  3  You.  &  Coll.  565. 

723.  Distinction  suggested,  that  some  should  take  under  the  will, 

wbcrc  none  could  take  in  case  of  an  intestacy,  but  tiiat 
none  should  take  under  the  will,  where  they  could  all 
take  in  case  of  inteslacv. 


ESSAY  ON  EXECUTORY  INTERESTS.  li 

724.  Objection  answered. 

725.  VIII.  Where  a  testator  gives  to  some  only  of  a  class,  to  keep 

within  the  rule  against  perpetuities,  and  yet  limits  over 
on  failure  of  the  whole  class. 
Ellicombe  v.  Gompertz,  3  M.  &  C.  127. 

726.  IX.  Where  a  testator  gives  to  some  only  of  a  class,  without 

transgressing  the  rule  against  perpetuities,  but,  in  terms, 
limits  over  on  failure  of  the  whole  class,  and  yet   a])pa- 
rcntly  intended  to  create  a  mere  alternative  interest. 
Trickey  v.  Trickey,  3  M.  &  K.  560. 

727.  X.  Where  an  alternative  limitation  is  void  for  remoteness. 

728.  XI.  Interests  under  particular  or  qualified  powers  must  be 

such  as  would  have  been  good  if  created  by  the  deed  or 
will  containing  the  power. 

729.  XII.  But  interests  under  general  powers  need  not  be  of  such 

a  character. 

730.  Reason  of  the  above  distinction. 

731.  XIII.  Powers  to  arise  on  an  indefinite  failure  of  issue. 

732.  Reason  for  the  foregoing  rule. 
Bristoiv  V.  Boothhy,  2  Sim.  &  Stu.  465. 

733.  XIV.  Powers   of  appointment   among  a  class  of  persons, 

some   of  whom  will  probably  come  in   esse  within  the 
period  prescribed  by  the  general  rule. 

734.  Reason  for  the  foregoing  rule. 
Routledga  v.  Dorril,  2  Ves.  .Jun.  35G. 

735.  XV.  Powers  of  sale. 

SECTION  III. 
Cerlain  Pohiis  connected  with  the  Doctrine  of  Reynoteness. 

736.  I.  Where  the  absolute  interest  is  afterwards  restricted  to  a 

life  interest,  with  a  limitation  over,  which  is  void  for  re- 
moteness. 

737.  II.  Remainder  ai^ter  too  remote  an  interest. 

73S.  III.  Money  raised  by  a  term  well  created,  the  uses  whereof 

are  void  for  remoteness. 
Tregonwellv.  Sydenham,  3  Dow.  194. 

CHAPTER  V. 

ON  THE  RESTRAINTS  IMPOSED  ON  THE  ACCUMULATION  OF  THE  INCOME 
OF  REAL  AND  PERSONAL  ESTATE;  AND  OF  THE  DESTINATION  OF  IN- 
COME RELEASED  FROM  ACCUMULATION  OR  ACCRUING  BEFORE  THE 
VESTING    OF    AN    EXECUTORY    DEVISE    OR    REQUEST. 

SECTION  I. 

The  x.^ccumul((lii)n  (lUowed  before  tlic  Statute. 
73Sa.  The  rule  slated. 


lii  AN  ANALYSIS  OF  THE- POLLOWING 

Lord  Southampton  v.  Marquis  of  Hertford,  2  V.  &  B.  54. 
Marshall  v.  Holloway,  2  Swans.  451. 

SECTION  II. 

The  Periods   to  ichich^  except  in  certain  cases,  Accumulation  is 
.  restricted  bi/  the  Statute. 

73Sb.  Origin  of  the  statute  39  &  40  Geo.  III.  c.  98. 

73Sc.  Enactments  thereof. 

SECTION  III. 

Observations  and  Decisions  respecting  the  Restrictions  imposed  by  the 

Statute. 

73Sd.  I.  The  statute  apphes  even  to  accumulations  in  favour  of 

persons  taking  vested  interests. 
73Se.  II.  It  applies  even  where  accumulation  is  not  directed. 

73Sf.  III.  Accumulations  are  void  only  as  to  the  eventual  excess. 

738g.  IV.  Accumulation  void  after  21  years  from  testator's  death, 

though  it  lias  not  lasted  that  time. 
738h.  V.  Whether  accumulation  may  he  made  during  minority  of 

person  not  in  esse  at  grantor's  or  testator's  death. 
Haley  v.  Bannister,  4  Mad.  278. 

SECTION  IV. 

The  Saving  Clause  in  the  Statute. 

738i.  Words  of  the  Act. 

738j.  INIcaning  of  the  word  interest  in  the  second  exception. 

738k.  An  annuity  is  not  an  interest  within  the  second  exception. 

Shaw  V.  Rhodes,  1  M.  &  C.  135. 

SECTION  V. 

Of  the  Interm.ediate  Income  accruing  before  the  Vesting  of  an  Ex- 
ecutory Devise  or  Bequest. 

739.  I.  Wliere  there  is  no  disposition  of  the  intermediate  free- 

hold. 
739a.  Observations  of  Lord  Brougham  on  the  position  of  the  heir 

at  law. 

740.  II.  Where  there  is  no  disposition  of  the  intermediate  income 

of  personal  estate,  or  only  a  partial  disposition  which  is 

not  for  the  benefit  of  the  person  to  whom  the  executory 

bequest  is  made. 
Glanvil  v.  Glanvil,  2  Meriv.  38. 
740a.  III.  Where  the   intermediate  income  of  personal  estate  is 

partially  disposed  of  for  his  benefit. 
Harris  v.  Lloyd,  Turn.  &  R.  310. 


ESSAY  ON  EXECUTORY  INTERESTS.  liii 

741.  IV.  Where  there  is  a  residuary  devise  or  bequest. 

Phipps  V.  fVil/ia?ns,  5  Sim.  4  1.  S.  C.  7io7n.  dickers  v.  Phipps, 
3  Clark  &  Fin.  GG7;  9  Jiligh,  430. 

SECTION  VI. 

The  Destination  of  I  he  Income  released  fro7n  Jlccumulation  hrj  the 

Statute. 
741a.  Words  of  the  Act. 

741b.  Efiect  of  this  clause. 

741c.  I.  Where  the  trust  for  accumulation  is  engrafted  on  a  vested 

interest,  and  the  income  goes  to  the  person  having  such 
interest. 
741d.  II.  Where  it  goes  to  the  residuary  devisee  or  legatee. 

Grounds  of  tlie  rule. 
Crawley  v.  Crawley,  7  Sim.  427. 
741e.  III.     Where  it  goes  to  the  heir  or  next  of  kin. 

Grounds  of  the  rule. 

McDonald  v.  Brice,  2  Keen,  27G.     Eyy-e  v.  3farsden,  2 
Keen,  564. 


CHAPTER  VI. 

OF    THE    TRANSMISSION    OF    EXECUTORY    INTERESTS. 

742.  I.  Division  of  executory  interests  with  reference  to  the  capa- 

city of  transmission  existing  at  the  time  of  their  limita- 
tion. 

Transmissible  in  all  events. 
Untransmissiblc. 

Transmissible  in  some  events  only. 

,  Division  of  executory  interests  with  reference  to  the  ca- 
pacity of  transmission  existing  at  the  death  of  the  persons 
entitled  thereto. 
Transmissible. 
Untransmissiblc. 


CHAPTER  VII. 

OF    THE    ALIENATION    OF    EXECUTOllV    INTERESTS. 

749 — 50.  I.  By  assignment  in  equity. 

751.  II.  By  release. 

752.  III.  By  devise  before  the  stat.  I  Vict.  c.  GO. 

753.  By  devise  under  stat.  1.  Vict.  c.  2G,  s.  3. 
754 — 6.  IV.   By  estoppel  and  conveyance. 

756*.  Doe   d.    Brune  v.   Martyn,  S    l^ar.  &  Cres.  527.      Doe  d. 

Christmas  v.  Oliver,  10  Bar.  &  Cress.  1S7,  190. 


743. 
744. 
745. 
746. 

1. 

o 

3. 
II, 

747. 

748. 

1. 

2. 

Viv  AN  ANALYSIS  OF  THE  FOLLOWING 

CHAPTER  VIII. 

OF    THE    SUPPORT    OP    CONTINGENT    REMAINDERS. 

756a.  Contingent  remainder  for  years  needs  no  preceding  freehold. 

757.  But  a  contingent  freehold  remainder  must  be  supported  by 

a  preceding  freehold. 

758.  I.  A  contingent  remainder  of  the  measure  of  freehold  must 

be  originally  preceded  by  a  vested  freehold. 

759.  A  freehold  interest  not  so  preceded  cannot  be  a  remainder. 

760.  1.  A  vested  freehold  interest  after  a  term  for  years  is  not  a 

remainder. 

761 — 2.  2.  A  contingent  freehold  interest  limited  after  a  chattel  in- 
terest at  common  law,  is  not  a  remainder,  and  is  void. 

762a.  3.  A  contingent  freehold  interest  limited  after  a  chattel  in- 

terest, by  way  of  use  or  devise,  is  good,  but  not  as  a  re- 
mainder. 

763.  4.  A  freehold  interest  limited  by  way  of  use  or  devise  after 

a  contingent  interest  only,  is  good,  but  not  as  a  remainder. 

763a.  5.  A  freehold  interest  limited  after  a  contingent  interest  only, 

at  common  law,  is  not  a  remainder,  and  is  void. 

764 5.    "^  II.  A  contingent  remainder  must  continue  to  be  preceded  by 

a  vested  freehold  capable  of  enduring  till  the  vesting  of 
the  remainder. 

765a.  But  not  necessarily  by  the  first  preceding  estate. 

765b.  III.  Not  necessary  that  the  preceding  estate  should  be  vested 

in  possession. 

765c.  IV.  A  preceding  estate  is  not  necessary,  where  the  legal 

estate  is  in  trustees. 

CHAPTER  IX. 

OF  THE    DESTRUCTION   OF  CONTINGENT    REMAINDERS  AND  OTHER  EXECU- 
TORY INTERESTS. 

SECTION  I. 

The  Destruction  of  Co7iti7igent  Remainders  created  out  of  a  Legal 
Fee  Simple  in  Freehold  Hereditaments. 

766.  A  contingent  remainder  is  destroyed  by  the  determination  of 

the  sole  subsisting  preceding  estate  before  such  remainder 
vests. 

767.  This  determination  may  happen  in  various  ways. 

768.  I.  By  regular  expiration. 

769.  II.  By  disseisin  and  tolling  of  the  rigiit  of  entry. 

770.  III.  By  the  destructive  operation  of  a  feoffment,  fine,  or 

recovery,  by  the  tenant  of  the  preceding  estate. 


ESSAY  ON  EXECUTORY  INTERESTS.  Iv 

771 — 3.       whether  he  is  beneficially  entitled  or  not. 
774 — 5.       It  is  the  destruction,  not  the  transfer,  of  the  particular  estate, 
which  destroys  a  contingent  remainder. 

776.  IV.  By  forfeiture. 

777.  V.  By  merger. 

778.  1.  By  act  of  the  tenant  for  life  or  in  tail. 

(1)  By  acceptance  of  the  reversion. 

(2)  By  surrender,  bargain  and  sale,  or  lease  and  release  to 
the  remainder-man  or  reversioner. 

(4)  By  bargain  and  sale,  or  lease  and  release,  where  the 
tenant  for  life  has  also  the  immediate  remainder  or  rever- 
sion. 

(5)  By  joining  the  remainder-man  or  reversioner  in  a  con- 
veyance. 

779.  2.  By  descent  of  the   inheritance  on   the  particular  tenant 

subsequently  to  the  taking  effect  of  the  particular  estate. 

780.  3.  But  not  bv  the  descent  of  the  inheritance  on  the  particu- 

lar tenant  at  the  moment  of  the  taking  effect  of  the  par- 
ticular estate. 
780a.  4.  Nor  by  the  union  of  the  particular  estate  and  the  inherit- 

ance under  the  conveyance  by  which,  and  at  the  time 
when,  both  were  created. 

781.  Trust  estates  to  preserve  contingent  remainders. 
783.  Mere  right  of  entry  in  the  trustees  is  sufficient. 

SECTION  II. 

The  Destruction  of  Contingent  Remainders  created  out  of  an  Equi- 
table Fee  Simple  Estate  in  Freehold  Hereditaments,  or  an  Equi- 
table Subordinate  Fee  Simple  in  Copyholds. 

783.  No  necessity  for  the  continuance  of  a  particular  estate  where 

the  legal  estate  is  in  trustees. 
Observations  of  Lord  Ellenborough  as  to  this  point. 

784.  Cestui  que  trust  for  life  cannot  destroy  a  contingent  re- 

mainder; 

785.  but  cestui  que  t7'ust  in  tail  may. 

SECTION  III. 

The  Destruction  of  Contingent  Remai7iders  created  out  of  a  Legal 
Fee  Simple  in  Copyholds. 

786.  I.  Where  the  preceding  estate  expires  by  original  limitation, 

the  remainder  is  destroyed. 

787.  II.  J^ut  where  the  preceding  estate  is  determined  by  act  of 

the  tenant,  the  remainder  is  not  destroyed. 

788.  III.  Remainder  destroyed  by  enfranchisement. 


Ivi         AN  ANALYSIS  OF  THE  FOLLOWING  ESSAY. 


SECTION  IV. 

The  Destruction  of  Contingent  Ee^nuijiders  created  out  of  Estates 

pur  auter  vie. 

SECTION  V. 

The  Destruction  of  Executory  Interests  not  limited  by  way  of 

Remainder. 

789.  By  recovery. 

790.  Not  by  mere  alteration  in  estate. 


IVll 


TABLE  OF  CASES 

STATED  AND  KEFERKED  TO  IN  THE  FOLLOWING  ESSAY. 


*  *  77ns  comprises  the  cases  in  Fearne,  with  the  exception  of  some  iphich  arc  refer- 
red to  liy  Crinnin<r,  and  are  not  dirccllij  connected  with  the  subject;  and  of  certain 
others  which  are  referred  to  in  the  "  Original  View"  by  a  general  reference  to  the 
pages  of  Fearne  where  they  are  cited. 


Abingdon,  Prowse  v.  r.  155-6 
Ackers,  Pliipps  v.  r.  42[h 

V.  Phipps,  188.  429. 

Aclom,  Vandcrzec  v.  r.  1U4. 
Adams  v.  Bush,  81. 

V.  Savage,  r.  228. 

Addcnbrook,  Murray  v.  332. — r.  157. 

Adolplius,  Gordon  v.  r.  126. 

Agar,  Tcnny  d.  Agar  v.  2a7. 

Aircy,  Ellison  v.  r.  92. 

Aislabie  v.  Rice,  r.  385. 

Alton  V.  Brooks,  381. 

Albun's  (Duke  of,)  Lord  Ducrhurst  «.  101. 

Ailanson  v.  Ciitlicrow,  r.  297. 

Alien,  Barnes  v.  r.  27.  431. 

(Doc  d.)  V.  Ironmonger,  203. 

Aligood  V.  Withers,  r.  243. 
Ambrose,  Hodgson  v.  r.  225. 
Amherst  v.  Donelly,  r.  127. 
Andree  v.  Ward,  379. 
Andrewes,  Wollen  v.  265. 
Andrews  r.  Fulham,  r.  361. 
Applin,  Doe  d.  Blaiullbrd  r.  r.  21)3. 
Archer,  Ijarab  v.  r.  395. 
Archer's  case,  r.  239.  445.  447. 
Arnold  v.  Congreve,  393. 
Ascot,  Jermyn  c.  r.  383. 
Asl),  M;issenburgh  v.  r.  360. 
Ashley  v.  Ashley,  329.— r.  395. 
Atkins  V.  Hiecocks,  r.  149. 
Atkinson  v.  Hutchinson,  r.  370. 

D  Turner,  428.— r.  170. 

(Doc  d.)  V.  Fcthorstnne,  231. 

Attorne3'-Gcneral  r.  Bright,  310. 

V.  Crispin,  r.  92.  104. 

V.  Gill,  r.  399. 

».  Sutton,  r.  296. 

Austen  n.  Taylor,  r.  24  I. 
Avelyn  v.  Ward,  r.  358.  3G1. 
Ayton  r.  Aytou,  r.  92. 
■  Vol.  II.— II 


Backhouse  v.  Wells,  r.  251. 255.  262. 
Bacon  v.  Proctor,  165. 

,  Taylor  v.  r.  158. 

Bagot,  Brounckcr  c.  r.  307. 

Bagshaw,  Denn  d.  Radclyile  v.  r.  130.  173. 

V.  Spencer,  r.  2:29. 

Baines,  Crigan  v.  341. 
Baker  v.  Bay  ley,  r.  451. 

,  Easiman  v.  98. 

Baldwin  v.  Carver,  r.  390. 

,  Garth  v.  r.  229.  308. 

,  Langley  v.  r.  296. 

Bale  V.  Coleman,  r.  224. 
Bamfield  r.  Popham,  r.  290. 
Bankcs  u.  Lc  Dc.<i)encer,  402. 

V.  Holme,  198. 

Banner  v.  Banner,  247. 
Bannister,  Haley  v.  421. 

,  Doe  d.  Jearrad  v.  330. 

Barbut,  Tilbury  v.  r.  399. 
Barker,  iNIalim  r.  r.  194. 

V.  Suretces,  r.  97. 

Barley,  Cruse  v.  r.  142. 
Barlow  r.  Salter,  r.  282. 
Barnadiston,  Carter  v.  r.  21. 
Barnard,  Murtliwaitc  i>.  290. 

(Doe  d.)  V.  Reason,  r.  273. 

,  Sitwcll  V.  r.  150. 

Barncfield  (Doc  d)  v.  Wetton,  302.— r.  71. 
Barnes  v.  Allen,  r.  27.  434. 

,  Skey  c.  181. 

Barrington  r.  Tristram,  94. 

Bassett,  Toovey  v.  279, 

Bath  and  Wells  (Bp.  of),  Proctor  r.  r.  10 1. 

411. 
Batsford  r.  Kebbcll,  l.'-.S. 
Bayley,  Baker  r.  r.  451. 

V.  Bishop,  166. 

Beacheroll  r.  Bro'^me,  280. 
Bean  (Doc  d.)  r.  Hallcy,  r.  297. 


Ivm 


TABLE  OF  CASES. 


Beauclerk  v.  Dormer,  r.  395. 
Beaumont,  Darbison  d.  I^ong  v.  r.  203. 
Becklev  v.  Newland,  r.  436. 
Bedford's  (Earl  of)  case,  r.  205. 
Bedford,  Thonir  v.  r.  224. 

Hoe  d.  Thong  v.  225. 

Bejushiii,Coltliirst  v.  r.  132-4. 
Belk  v.  Slack,  r.  141.  334. 
Bengougli  v.  Edridgc,  r.  391. 
Bennett  v.  Lowe,  303.— r.  395. 

r.  Seymour,  r.  13G. 

V.  Earl  of  Tankervillc,  232.— r.  224. 

Bentall,  Carter  v.  277. 

Benyon  v.  Maddison,  r.  I  G4. 

Bergavenjiy  (Lady),  Richards  v.  r.  230. 

Bevan,  Oinmaney  v.  341. 

Beverley  r.  Beverley,  r.  113. 

Beverley's  (Provost  of)  case,  207. 

Bevil,  Ward  v.  295. 

Biddle  t)  Terkins,  r,  414, 

Billings  V.  Sandorn,  r.  339, 

Billingsley  r.  Wells,  r.  141.  33.5. 

Billington,  Goodlitle  v.  r.  43.  57.  71. 

Bishop,  Bay  ley  v.  166. 

Bldckall,  Long  v.  r.  391. 

Blackborne  v.  Edgley,  r.  296. 

Blackburne  «.  Stables,  245.— r.  230. 

Blake,  Ferrin  ?•-  r.  225. 

Blamire  jj.  Geldart,  166. 

Bland  v.  Williams,  185. 

Blandford  (Doc  d.)  v.  AppHn,  29.3. 

Blcasc  V.  Burgh,  150— r. 94.  181. 

Blissett,  Cliapman  j;.  r.  429. 

Blower,  Lampley  v.  r.  271.  311.  443.  448, 

Boddington,  Witts  v.  r.  194. 

Boehm  V.  Clarke,  r.  282. 

Bolger  V.  Mackell,  r.  150. 

Boodle,  Mytton  v.  100. 

Boorman,  Gilbert  v.  94. 

Booth  V.  Booth,  168. 

Boothby,  Bristow  k.  412. 

V.  Vernon,  r.  447. 

Boraston's  case,  r.  164. 

Bosville,  Lord  Glenorchy  v.  r.  251.  2C3 

,  Wealthy  v.  r.  71. 

Bousfield,  Marshall,  v.  292. 
Bowes  V.  Scowcrofl,  351. 
Boyce  v.  Ilauning,  r.  414. 
Boyle,  Graves  v.  r.  92. 
Brachcn,  Tunstall  v.  r.  165. 
Bradford  /;.  Foley,  r.  382. 
Bradley,  Lester  ».  160. 

,  Porter  r.  r.27l. 

Bradshaw  v.  Skilheck,  313. 
Branstrom  v.  Wilkinson,  171. 
Breedon  /■.  'i'ugman,  160. 
Brice,  M'Donald  v.  4.32.— r.  420. 
Briddon  (Denn  d.)  v.  Page,  r.  .395. 
Bridgewater  (Duke  of)  v.  Egerton,  r.  429. 
Briggs,  Roe  d.  Clenu-tt  v.  r.  449.  451. 
Bright,  Att.-(ien.  e.  310. 

V.  Rowe,  104. 

Bristow  ».  Boothby,  412. 
„.  Warde,  194. 


Brilton  r.  Twining,  309. 
Bromhead  i'.  Hunt,  337. 
Brooke  v.  Turner,  266. 
Brooking,  Lloyd  v.  r.  446. 
Brooks,  Alton  v.  381. 

,  Goulbdurn  v.  166. 

Broom,  Beaciicroft  v.  280. 
Broomfield  r.  Crowder,  175. 
Broughton  v.  Langlcy,  r.  224. 
Brouncker  v.  Bagot,  r.  307. 
Brown  (Doe  d.)  v.  Holme,  r.  43.  71. 

,  Pells  V.  r.  51. 

Browne  v.  Lord  Kenyon,335.— r.  141. 

Brownsword  v.  Edwards,  356. — r.  102.  170; 

Bruerc,  Stuart  v.  r.  150. 

Bruiie  (Doc  d.)  v.  Martin,  438. 

Brydges  v.  Brydgcs,  r.  229. 

Brymer,  Reeves,  v.  r.  136. 

Buchanan,  Russell  v.  183. 

Bull  V.  Pritchard,  189.— r.  403. 

Bullock,  Spencer  v.  167. 

V.  Stones,  r.  427-8. 

Burchell,  King  v.  r.  251.  255.  292. 

Burchett  v.  Durdant,  r.  203. 

Burdett,  Powis».  87. 

Burford  v.  Lee,  r.  312,  395. 

Burgh,  Blease  v.  1.50.— r.  94.  181. 

Burley's  case,  r.  230. 

Burnell,  Foley  v.  321.— r.  60.  294. 

Burnsall,  Doe  d.  Davy  v.  259.— r.  44.  9<. 

Burslem,  Vaughan  v.  .321. — r.  317. 

Burton  v.  Hastings,  r.  247. 

Bush,  Adams  w.  81. 

,  Davies  v.  r.  448. 

Bussoy,  Hodgeson  d.  r.  309. 
Butcher  v.  Butcher,  r.  194. 
Butterficld  v.  Butterfield,  r.  308. 

CadcllB.  Palmer,  r.. 391. 

Cadogan  (Doc  d.)  v.  Ewart,  288.— r.  4.W. 

V.  Kcnnet,  r.  60. 

CuGsar,  Spring  v.  174. 
Cambridge  v.  Rous,  340.— r.  411. 
Camelford  (Lord),  Smilii  v.  r.  193-4, 
Cameron,  Kniglit  v.  r.  170. 
Campbell,  Candy  v.  397. 

V.  Harding,  397. 

Candler  (Doe  d.)  v.  Smith,  232. 
(^andy  v.  Campbell.  397. 
(Japcl,  Turner  v.  311. 
Carevv,  Lloyd  v.  r.  51. 
Carlcton».  Leighlon,  r.  23. 
{'arpcntcr,  Tebbs  v.  r.  92. 
Carr  v.  Lord  Erroll,  .322.— r.  .320. 
Carter  v.  Barnadiston,  r.  21. 

j5.  Bentall,  277. 

,  White  V.  r.  244. 

Cartier,  Howgrave  v.  86. 
Carver,  Baldwin  v.  r.  390. 
Carwardine  v.  Carwardine,  r.  71. 
Case  V.  Drosier,  r.  401. 
Catchmay  v.  NichoUs,  r.  60. 
Chadock  ».  Cowley,  r.  172. 
C|i;ilic.  Mnitland  v.  109, 


TABLE  OF  CASES. 


lix 


Clialmcr,  Lord  Douglas  v.  342. 

tlhiiiiibers  v.  (.'hamberp,  r.  247. 

<  ."liaiKJlcHs  ».  Price,  3'J7. 

Cliaudos  (Duke  of)  v.  Talbot,  r.  155-6. 

Chapman  i;.  Blissett,  r.  429.  443.  448. 

,  Hill  v.'Jl. 

d.  Scoles  V.  Scoles,  286. 

Chatham  (Earl  of)  v.  Daw  Tothill,  r.  308. 

Chatteris  v.  Young,  r.  358. 

Cliawncy  i'.  Grayiion,  r.  435. 

Cheek  or  Clerk  v.  Day  or  Davy,  r.  210. 

Check,  Walkins  v.  1G3. 

Cheeke,  Luxford  v.  r.  12G. 

Child  V.  Giblctt,  r.  341. 

CJholmeley  v.  Iluiiihlr,  r.  383. 

Cholinlcy's  case,  r.  123. 

Cholmoudcley  (.Marriuis)  v.  Lord  Clinton,  76. 

Oiristinas  (Doe  d.)  v.  Oliver,  438. 

Chudlei-jh's  case,  r.  445. 

Clark  or  Check  v.  Day  or  Davy,  r.  240. 

,  Smart  v.  346. 

,  Tate  V.  257. 

Clarke,  Boehm  7).  r.  282. 

V.  Clarke,  94. 

,  Dickcn  v.  378. 

,  Goodwin  v.  r.  395. 

V.  Gould,  343. 

V.  Ross,  r.  1G5. 

V.  Smith  r.  427. 

Clemett  (lioe  d.)  v.  Briggs,  r.  449.  45L 

Caere's  (Sir  E.)  case,  r.  20. 

Clifdcn  (.Lord),  Hope  v.  84. 

Clinton  (Lord),  Marquis  Cholmondcley  v.  76. 

Clithcrow,  Allanson  v.  r.  2!)7. 

Clutterbuck  v.  Edwards,  107. 

Coates,  Nash  ?).  231. 

Cock  (Doe  d.)  v.  Cooper,  293. 

Cockcrell,  Ilanbury  ?'.  r.  51. 

Cogan  ».  Cogan,  r.  132. 

Cole  (Doc  d.)  V.  Goldsmith,  228. 

Coleman,  Bale  v.  r.  224. 

V.  Seymour,  r.  91. 

Collins,  Sherman  v.  r.  165. 

,  White  1).  r.  239.  240. 

CoUis,  Doe  d.  Cooper  i\  262. 
Colt,  Toldervy  v.  358.— r.  50. 
Coltliirst  r.  Bejusliin,  r.  132-4. 
Colyear,  Doe  d.  Earl  of  Lindscy  v.  229. 
Combcrbach  (Doc  d  )  v.  Pcrryn,  r.  274.  330. 

387.  390. 
Compton,  Paul  v.  r.  92. 
Condon,  Lowther  v.  r.  165. 
Congrcvc,  Arnold  v.  393. 

V.  Congrcvc,  r.  92. 

Douglas  V.  236.— r.  230.  307. 

Conway  (Lord),  AValpolc  v.  r.  193. 
Cook,  Lineh  v.  r.  443. 
Cooke,  Doe  d.  Everett  d.  101. 
Cooper,  Doc  d.  ('ock  i\  293. 

(Doe  d.)  D.  Collis,  262. 

(^rbet  I'.  Tichborn,  r.  443. 
Corbet's  case,  r.  3S3. 
Cornish,  Goodright  »'.  r.  440. 
(^osin,  Tippin  v.  r.  226.  229. 


Cotton  V.  Heath,  r.  59.  395. 
CouIhou  r.  Coulson,  r.  225. 
Cousins  I'.  Schroder,  167. 
Coventry  (Lord),  Hay  v.  275.— r.  395. 

,  Waring  v.  r.  414. 

Cowley,  Chadock  v.  r.  172. 
Cradock,  Holmes  v.  378. — r.  50. 
Crawley  v.  Crawley,  432. — r.  420. 
C;rebcr,  Right  v.  r.  241.  390. 
Crigan  v.  liaines,  341. 
Cripps  V.  Wolcolt,  r.  141. 
C'rispin,  Alt.  Gen.  v.  r.  92. 164, 
(^ritchettt).  Taynton,  190. 
Croker  t\  Trevithin,  r.  384. 
Cromck  ».  Lumb,  406. 
Crone  v.  Odell,  r.  92. 
Crooke  v.  De  Vandcs,  r.  399. 
Crowder,  Broomfield  n.  175. 
Crump  V.  Norwood,  242. — r.  241. 
Cruse  V.  Burle3',  r.  142. 
Cunningham  r.  Moody,  r.  193. 
Cursham  v.  Newland,  261. 
Curtis  V.  Price,  226. 
Curwcu,  Stonor  v.  312. 
Curzon  (Lord),  Perfect  v.  r.  87. 
Cusack  V.  Ciisack,  r.  246. 
Cuthbcrt  ».  Purrier,  355. 
Cuttlcr,  Snowc  ».  r.  54. 

Dacrc  (Dowager  Lady)  v.  Doe  d.  Lady  Dacre, 

276. 
Dafforne  v.  Goodman,  r.  309. 
Daintry  v.  Daintry,  303. 
Dallas,  Davidson  v.  92. — r.  337. 
Dansey  v.  Griffiths,  288. 
Darbison  d.  Long  v.  Beaumont  r.  203. 
Davidson  r.  Dallas,  92.— r.  337. 
Davie's  (Spittle  and)  case,  r.  384. 
Davics  It.  Bush,  r.  448. 

,  Doe  d.  Jones  v.  269. 

,  Lowe  V.  238. 

V.  Speed,  r.  21.  440. 

Davis,  Godfrey  f.  93. 

Davy  (Docd.)  v.  Burnsall,259.— r.44.97.294. 

,  Clicok  or  Clark,  v.  r.  240. 

,  Kcm]»  V.  r.  165. 

Daw  Tothill,  Earl  of  Chatham  r.  r.  30a 
Dawson  ».  Killct,  r.  165. 
Day,  Check  or  Clark  r.  240. 

,  Right  d.  Day  r.  99. 

Dean    and  Ch.  of   Westminster  (Doc  d.)  v. 

Frccuian,  r.  14. 
Deane  r.  Test,  r.  181.  337. 
Dcerhurst  (Lord)  v.  Duke  of  St.  Alban's,  401. 
Denn  d.  Radclyfie  r.  Bagshaw,  r.  136.  173. 

n.  Kemevs,  r.  102. 

d.  Briddim  r.  Page,  r.  .395. 

d.  Webb  r.  Pm.kiy,  291-2.  445. 

d.  Slalrr  r.  Slater,  287. 

Denny,  Thrustout  d.  Small  v.  r.  278. 

Derby,  Higgins  r.  r.  43. 

De  Vandes  v.  Crooke,  r.  .309. 

Devisnie  v.  Mello,  r.  92. 

Dickcn  r.  (Clarke,  37'^. 


TABLE  OF  CASES. 


Dickenson,  Dod  r.  r.  307. 
Difilis  V.  Goldschmidt,  r.  95. 
Dod  V.  Dickenson,  r.  307. 

V.  Dod,  r.  2G3. 

V.  Wake,  406. 

Dodson  (Roe  d.)  v.  Grew,  r.  292. 

V.  llay,  r.  157. 

Doe  d.  Allen  v.  Ironmonger,  20.3. 

Atkinson  v.  Fethcrstone,  234. 

Barnard  v.  Reason,  r.  273. 

Barncficld  v.  Wctton,  302.— r.  71. 

Bean  v.  Ilallcy,  r.  2i)7. 

Biandford  n.  Applin,  2!)3. 

Brown  v.  Ilolme,  r.  43.  71. 

Brune  v.  lAIartin,  433. 

Cadogan  v.  Evvart,  288. — r.  450. 

Candler  v.  Smith,  232. 

Christmas  v,  Oliver,  438. 

Cock  V.  Cooper,  203. 

Cole  V.  Goldsmill),  228. 

Comberbach  v.  Pcrryn,  r.  274.  330.  387. 

390. 

Cooper  V.  CoIIis,  262. 

Davy  V.  Burnsall,  2.59.— r.  44.  97.  294. 

Dean  and  Ch.  of  Westminster  v.  Free- 
man, r.  14. 

Dolley  V.  Ward,  159. 

Ellis  V.  Ellis,  287. 

Everett  n.  Cooke,  101. 

Fonnereau  v.  Fonnereau,  r.  54. 

Garrod  v.  Garrod,  2G8. 

Gilman  v.  Elvey,  259.— r.  44.  294.  330. 

Hallen  v.  Ironmonger,  203. — r.  241. 

■ •  Harris  v.  Howell,  365. 

Herbert  v.  Selby,  370.— r.  99.  361. 

Hunt  V.  Moore,  177. 

Jearrad  v.  Bannister,  330. 

Jones  V.  Davies,  269. 

V.  Owens,  288.— r.  282. 

King  V.  Frost,  283.— r.  294. 

LilYord  v.  Sparrow,  348. 

Lindsey  (Earl  of)  v.  Colyear,  229. 

Liversage  v.  Vaughan,  r.  395. 

Long  V.  Prigg,  r.  141. 

Mus.sel  V.  Morgan,  r.  71.  386. 

Nevile  v.  Rivers,  287. 

Pilkington  v.  Spralt,  75. 

Planner  e.  Scudamore,  175. 

Roake  v.  Nowell,  177. 

Savilc,  Earl  of  Scarborough  v.  8. 

Smith  V.  Webber,  283. 

Strong  V.  GofT,  241.— r.  234. 

Tooley  v.  Gunnis,  r.  395. 

Usher  V.  Jessep,  101.  357. 

Watson  V.  Shipphard,  r.  358. 

Wlieedon  v.  I/ea,  r.  164. 

Willis  r.  Martin,  r.  193-4.  387. 

Doe  V.  Dorrell,  r.  390. 

V.  Laming,  r.  241. 

V.  Martin,  r.  449. 

,  Randoll  d.,  v.  Roakc,  177. 

Dolley  (Doe  d.)  v.  Ward,  LW. 
Donelly,  Amhurt-l  n.  127. 
Donn  V.  Fenny,  310. 


Dormer,  Bcanclerk  v.  r.  395. 
Dorrell,  Doe  v.  r.  390. 
Dorril,  Roullcdge  i:  364.  413. 
Douglas  (Lord)  v.  C'halmer,  311. 

V.  Congrcvc,  236.— r.  230.  307. 

Dow,  Thompson  v.  r.  165. 

Dowlcr,  Higgins  v.  r.  43. 

Drew,  Walter  v.  r.  71.  303. 

Driver  d.  Edgar  v.  Edgar,  r.  52.  67.  445. 

V.  Frank,  78. 

Drosier,  Case  v.  r.  401. 

Drury,  Woodlilfp.r.  39. 

Dubbcr  d.  Trollopc  v.  TroUopc,  r.  230. 

Duflicld  V.  Duffield,  136.— r.  73.  427. 

Dugard,  Manfield  v.  r.  164. 

Duke,  Wheeler  v.r.  249. 

Dungannon,  Vane  v.  r.  11)4. 

Dunliam,  Goodright  d.  Docking  v.  r.  272.  296. 

300.  330. 
Dunk  V.  Fenner,  398. 
Durdant,  Burchelt«.  r.  203. 
Dyer,  Miles  v.  108. 

Eason,  Elton  v.  308. 

Eastman  v.  Baker,  98. 

Edgar,  Driver  d.  Edgar  v.  r.  52.  67.  445. 

Edge,  Scatterwood  v.  r.  14.  129.  358.  440. 

Edgley,  Blackborn  v.  r.  296. 

Edridgc,  Bcngough  v,  r.  391. 

Edwards,  Brownsword  v.  r.  102.170.  356. 

,  Clutterbuek  v.  107. 

V.  Hnramond,  174. — r.  175. 

,  Laftcr  V.  47.— r.  347. 

V.  Symons,  158. 

Egerton,  Duke  of  Bi  idgcwater  v.  r.  429. 

V.  Jones,  200. 

Ekins,  Green  v.  r.  4.3.  247. 
Elkiu.Pinbury  v.  r.  281,434-5. 
Ellicombo  v.  Gompcitz,  409. 
Elliott  V.  Jekyl,  r.  218. 
Ellis  (Doe  d.)  V.  Ellis,  287. 

,  Knight  V.  T.  310. 

V.  Selby.  277. 

Ellison  V.  Aircy,  r.  92, 
Elton  V.  Eason,  308. 

V.  Elton,  r.  144.  170. 

Elvey,   Doc  d.  Gihnan   v.  259.— r.  44.  294. 

330. 
Embrey  v,  Martin,  r.  165. 
Ernes  (5.  Hancock,  r.  165. 
Entwistle  r.  Markland,  r.  150. 
Erington,  Read  and  Morpeth  v.  r.  205. 
Errissey,  West  v.  r.  266-7. 
Erroll,  Carr  v.  322.— r.  320. 
Everest  (Doe  d.)  v.  Cooke,  101. 

V.  Gell,  397. 

Ewart,  Doe  d.  Cadogan  v.  288. 
Eyre  v.  Marsden,  433.— r.  450. 

Fairfield  v.  Morgan,  98. 
Farmer  v.  Francis,  186. 
Faulkcner  v.  Hollingsworth,  r.  150. 
Fenner,  Dunk  r.  398. 
Fcnwick  v.  Milford,  r.  205. 


TABLE  OF  CASES. 


Ixi 


Ferard,  Lcpine  r.  r.  396. 
I'Vrrcrs,  Shirley  v.  r.  CO. 
I'Vtlicrston  v.  I'ethcrston,  "J.'jG. 
I'Vtlicrstonc,  Doc  d.  Atkinson  v.  234. 
Fitzgerald,  (jcnery  v.  r.  429. 
Foley,  Ur;idford  v.  r.  382. 

V.  ISurnclI,  321.— r.  GU. 

V.  Irwin,  271. 

Foncrcau  v.  Foncreau,  r.  l.'JT.  381. 
Foiincreau  (Doe  d.)  Fonncrcau  v.  r.  M.  200. 
Foordc,  llaycsd.  Foordc  v.  r.  225-6.  231. 
Ford,  Fordycc  v.  314, 

».  Rawlins,  143. 

Fordj'ce  v.  Ford,  314, 

Foreman,  Harrison  v.  380. — r.  337. 

Forttscuc  D.Abbot,  r.  172. 

Foster  v.  Lord  Komncy,  275. — r.  395. 

Fountain  v.  Goocli,  r.  52.  67.  445. 

Fowler,  Kcily  v.  r.  395. 

Fox,  Lady  Lanesborouffh  v.  r.  198.  303. 

• ,  Porter  v.  152.  405. 

Foy,  Hutcliins  v.  r.  165. 

V.  J.  Hynde,  r.  383. 

Francis,  Farmer  v.  186. 
Franco,  Torres  v.  106. 
Frank,  Driver  v.  78. 

V.  Stovin,  291. 

Franklin  r.  Lay,  289.— r.  257. 
Franks  v.  Price,  298. 
Frcckcr,  Norton  v.  r.  451. 
Freeman,  Doc  d.  Dean  and  t'ii.  of  Westmin- 
ster V.  r.  14. 
French  v.  Caddel,  r.  282. 
Frogmorton  v.  Wharrey,  r.  212. 
Frost,  Doc  d.  King  v.  283.— r.  294. 
Fry  V.  Jjd.  Slierbourne,  103. 

's  (Lady  Ann)  case,  r.  133. 

Fulham,  Andrews  v.  r.  361. 
Fulmerston  v.  Steward,  r.  129. 

Galland  v.  Leonard,  348. 
Gardiner,  Morgan  «,  r.  165. 
Gardner  v.  Lyddon,  39. 
Garrett,  Sowcll  v.  r.  97. 
Garrod,  Doc  d.  Garrod  v.  263. 
Garth  v.  Baldwin,  r.  229.  308. 
Gaskcll  V.  Harman,  r.  150. 
CJaunt,  Target  v.  r.  282.  395. 
Gawler  v.  Standewickc,  r.  155.  157. 
Gcddes,  Vawdry  v.  191. — r.  4U3. 
Gee,  Measure  v.  231. 
Geldart,  lilamirc  v.  IGG. 
CJell,  Everest  v.  397. 
Gencry  v.  Fitzgerald,  r.  429. 
Gcrrard,  Soulc  v.  r.  97. 
Gibbs  «.  Tait,  311.— r.  339. 
Giblctt,  Child  )!.  r.  341. 
CJibson  r.  Lord  Montlbrt,  r.  129. 

V.  Rogers,  r.  95.  429. 

( Jilbcrt  V.  Roorman,  94. 
(Jiles  t).  Gile.s,  343. 
Gill,  Att.  Gen.  o.  r.  399. 
Gilman  (Doe  d.)  v.  Elvcy,  259.- r.  11.  294 
330. 

Vol.  11.— 1 


Gilmore  v,  Severn,  r.  94. 

Ginger  d.  White  ».  White,  r.  296. 

Glanvil  D.GIanvii,  428. 

Glasbrook,  Woodward  r.  r.  102. 

Glenorchy  (Lord)  r.  liosvillc,  r.  251.  2G3. 

Glover  V.  Monckton,  r.  279. 

Godfrey  v.  Davis,  93. 

(_iodol[)liin  (Lord),  Duke  of  Marlborough  r.  r. 

195.  393. 
Godwin  c.  Mundav,  r.  165. 
Goli;  Doc  d.  Strong  v.  241.— r.  234. 
(Toldschmidt,  Dillles  r.  r.  95. 
Goldsniilii,  Doc  d.  Cole  v.  228. 
Gompertz,  Ellicombc  r.  409. 
Gooch,  Fountain  r.  r.  52.  07.  445. 
Goodman,  Dalforne  v.  r.  309. 
Goodright  v.  Cornish,  r.  440. 
d.  Docking   v.  Dunham,  r.   272.  296. 

300.  330. 

d.  Llo)'d  V.  Jones,  275. 

d.  Revcll  r.  Parker,  1G6. 

V.  Pullyn,  r.  231. 

V.  Searlc,  r.  435. 

d.  Rroking  v.  White,  r.  203. 

V.  W'right,  237. 

Goodtitle  v.  Billington,  r.  43.  57. 

d.  Sweet  V.  Herring,  238. 

d.  Peakc  J).  I'egden,  r.  271. 

d.  Hayward  v.  Wliilby,  r.  157. 

(Joodwin  V.  C'larke,  r.  395. 
Gordon  v.  Adolj)hus,  r.  126. 

V.  Levi,  r.  194, 

V.  Rutherford,  143. 

Gore  V.  Gore,  r.  39.  427. 

Gossagc  V.  Taylor,  r  212. 

Goudgc,  Lane  v.  159. 

Goulbourn  v.  Brooks,  166. 

Gould,  Clarke  r.  343. 

Gowcr  V.  Grosvenor,  324. — r.  360. 

Grallon   (Duke  of)  v,  Hanmer,  r.  396.  451. 

452. 
Graham,  Hanson  v.  158. — r.  153. 
Grant  v.  Grant,  150. 
Graves  r.  Boyle,  r.  92. 
Gray,  I/islo  r.  r.  239. 
Graydon,  Chaunccy  r.  r.  435. 
Green  v.  Ekins,  r.  43.  247. 

V.  Rod,  r.  2S1. 

Grelton  v.  llaward,  234. 
Grew,  Roc  d.  Dodson  v.  r.  292. 
(Jrieve,  Grilliths  v.  400. 
Griffiths,  Dansuy  v.  288. 

V.  Grieve,  400. 

V.  Vere,  r.  420. 

Groombridgc,  Prcstwidgcr.  3e<I. 
Grosvenor,  CJower  v.  3'J4 — r.  360. 
Gulliver  ».  Wickctt,  r.  51.  361. 
(Junnis,  Doc  d.  Toolcy  v.  r.  395. 
Gurncl  v.  Wood,  r.  435. 

Ilaberghani  v.  Vincent.  449. — r.  4  JO.  451. 
Hake,  King  v.  85. 
Hale,  Webster  v.  346. 
Haley  f.  Baaaiblcr,  421 


Ixii 


TABLE  OF  CASES. 


Hall,  Wa'cot  v.  r.  157. 

Hallcn  (Doe  d.)  v.  Ironmonger.  203. — r.  241. 

Hallcy,  D..C  d.  Bean  r.  r.  2'J7. 

Ilallifax  V  Wilson,  103.  ^ 

Hammond,  Edwards  r,  174. — r.  175. 

Wright  V.  r.  31)9. 

Hanbury  r.  Cockcrcll,  r.  51. 

Hancock,  Ernes  r.  r.  1G5. 

Hanmer,  Uukc  of  Grafton  r.  r.  396.  451.  452. 

Hanning,  Bnycc  v.  r.  414. 

Hanson  z;.  (iialiam,  1,08. — r.  153. 

Hardcastlo,  Robinson  «.  r.  415. 

Harding,  Campbell  v.  397. 

Hardwick,  Ring  v.  415. 

Harman.Gaskell  v.  r.  150. 

Harpool,  Kent  v.  r.  447. 

Harris  (Doe  d.)  v.  Howell,  3G5. 

V.  Lloyd,  429. 

.Tucker  v.  139.— r.  83. 

Harrison  v.  Foreman,  380. — r.  337. 

V.  Naylor,  r.  155. 

Hart  V.  Middlchurst,  r.  263. 
Hasker  r.  Sutton,  101. 
Hastings,  Bur. on  v.  r.  247. 
Haugliton  v.  Harrison,  r.  92. 
Haward,  Gretton  v  234. 

w.  Stillingfl.  et,  r.  427. 

Hawkins  v.  Hawkins.  100. 

,  Moor  et  ux.  v.  r.  437. 

Hay  V.  Lord  Coventry,  275.— r.  395. 

,  Dodson  V.  r.  1.57. 

Hayes  d.  Foorde  v.  Foorde,  r.  225-6.  231. 

C.Hayes,  394. 

,  Watson  V.  160. 

Hay  ward.  Page  v.  r.  14.  452. 
Hearing,  Webb  v.  r.  172  400. 
Heath,  Cotton  v.  r.  59.  395. 
Herbert,  Manning  v.r.  165. 

■ (Doe  d.)  ».  Sclby,  370.— r.  99.  361. 

Herring,  Howes  v.  338. 

,  Goodtitle  d.  Sweet  v.  r.  238. 

Hertford  (Marquis  of),  Lord  Southampton  v. 

417. 
Hervey  v.  M'Laughlin,  342. 
Hiccocks,  Atkins  v.  r.  149. 
Higden  v.  Williamson,  r.  436. 
Higgins  w.  Dowler  or  Derby,  r.  43. 
Highway  v.  Banner,  r.  247. 
Higman,  Roberts  v.  r.  91. 
Hill  V.  Chapman,  91. 

,  Marshall  D.  109. 

Hinckley  v.  Simmons,  339. 

Hiscox,  Wilhs  v.  r.  240. 

Hoare  v.  Parker,  r.  60. 

Hoath  V.  Hoath,  r.  157. 

Hobson  V.  Trevor,  r.  436. 

Hockley  ».  Mawbey,  258.— r.  43-4.  294. 330. 

Hodgeson  v.  Bussey,  r.  309. 

Hodgson  V.  Ambrose,  r.  225. 

V.  Rawson,  r.  165. 

,  Studholme  v.  r.  428. 

Holcrofl's  case,  r.  171. 
Holder  c.  Preston,  r.  414. 
Holford,  Palmer  v.  r.  392. 


Holkman,  Jordan  v.  r.  12G. 
Holland,  Rawley  v.  r,  228. 
Hollingsworth,  Fuulkener  v.  r.  150. 
llolloway,  Marshall  v.  418.— r.  165. 
Holme,  Bankes  c.  198. 

Doe  d.  Brown  v.  r.  43.  71. 

Monkhouse  v.  r.  164. 

Holmes  ».  Oadock,  378. — r.  50. 

,  Plunket  1).  r.  21.  302.  447. 

Home  V.  Pillans,  348.— r.  .344. 

Honor  1).  Honor,  r. 246-7. 

Hooker  v.  Hooker,  r.  447. 

Hooper,  Nichols  v.  r.  395. 

Hope  V.  Lord  Clifden,  84. 

Hopkins  V.  Hopkins,  r.  27.  365.  366.   427. 

443.  448. 
Horton  v.  Whittaker,  r.  88.  .358. 
Hoste  V.  Pratt,  94. 
Hotehkin  v.  Humfrey,  88. 
Howell,  Doe  d.  Harris  v.  365. 

V.  Howell,  r.  247. 

Howes  V.  Herring,  338. 

,  Scarfield  v.  r.  164. 

Howgrave  v.  Cartier,  86. 
Hudson,  Massey  v.  280. 
Hughes  V.  Hughes,  95. 

V.  Sayer,  r.  280. 

Humberston  v.  Humberston,  r.  265. 
Humble,  Cholmeley,  v.  r.  383. 
Humfrey,  Hotehkin  v.  88. 
Hungerfbrd,  Mildmay  v.  r.  451. 
Hunt,  Bromiiead  v,  337. 

(Doe  d.)  V.  Moore,  177. 

,  Price  V.  r.  97. 

Hunter  v.  Judd,  182.— r.  142.  403. 

,  Palsford  v.  r.  92. 

Hurrell,  Penhay  v.  r.  113.  228, 
Ilutchins  V.  Foy,  r.  164. 
Hutchinson,  Atkinson  v.  r.  270. 
Hyde  v.  Perratt,  r.  60. 
Hynde  (J.),  Foy  v.  r.  383. 

Ibbetson  v.  Ibbetson,  402. 
Ingram,  Shepherd  v.  r.  95. 
Ironmonger,  Doe  d.  Hallen  v.  203.  241. 
Irwin,  Foley  v.  271. 
Ives  V.  Legge,  r.  330. 

Jackson  v.  Jackson,  r.  150. 

Pitt  V.  r.  229. 

James,  Merest  v.  260. — r.  44. 

V.  Richardson,  r.  203. 

,  Romilly  V.  287. 

Jcal  V.  Tichener,  r.  165. 
Jcarrad  (Doc  d.)  v.  Bannister,  330. 
Jeffery,  Roe  d.  Sheers  v.  r.  271. 
Jcfferies  v.  Reynous.  r.  103. 
Joky],  Elliot  »,r.  248. 

Williams  v.  r.  248. 

Jcnkinson,  Murthwaite  v.  290. 
Jennings  v.  Looks,  r.  154. 

,  Nottingham  v.  r.  400. 

Jermyn  r.  Ascot,  r.  383. 

Jesscp,  Doe  d.  Abhcr  v.  101.  357. 


TABLE  OF  CASES. 


IXIil 


Jcsson  r.  Wriffhl,  233.-r.  224. 
Jones  (Doc  d.)  v.  Davics,  2G0. 

,  Egcrton  v.  200. 

V.  Langliton,  r.  2 IG. 

,  Goodright  d.  Lloyd  v.  275. 

V.  Morgan,  r.  201.  224-5.  23G. 

,  Murray  v    3G1. 

,  O'Kecie  v.  75. 

(Doc  d.)  V.  Owcna,  288.— r.  282. 

V.  Torin,  45. 

V.  Wcstconib,  r.  3G1. 

Jordan  v.  Holkinun,  r.  12G. 
Judd,  Hunter  i'.  Id2.  403. 
V.  Judd,  182.— r.  142.  403. 

Kcbbcll,  Batsford  v.  r.  158. 
Kcene  v.  Pinnock,  r.  276.  330. 
Keighley,  Maliin  v.  r.  104. 
Kcily  V.  Fowler,  r.  3"J5. 
Kemeys,  Dcnn  v.  102. 
Kemp  V.  Davy,  r.  1G5. 

,  Whatclcy  V.  r.  247. 

,  Wright  V.  T.  102. 

Kcnnet,  Cadogan  v.  r.  60. 

Kent  V.  Harpool,  r.  447. 

Kenyon  (Lord),  Browne  v.  335. — r.  141. 

Kevcrn  v.  Williams,  r.  151. 

Kilburnc,  Thecbridge  v.  r.  308. 

Killet,  Dawson  i\  r.  165. 

Kime,  Loddington  r.  r.  43.  262.  272.  330. 

Kinch  V.  Ward,  231.— r.  307. 

King  V.  Burchcll,  r.  251.  255.  292. 

(Doe  d.)  V.  Frost,  283.— i.  294. 

V.  Hake,  85. 

V.  Rumball,  r.  172. 

(The)  V.  Marq.  of  Stafford,  274. 

King  r.  Taylor,  34 1 . 

V.  Withers,  r.  1G4.  435. 

Kingslcy,  Roberts  v.  r.  247. 
Kirkpatrick  ».  Kirkpatrick,  278. 
Knight  V.  Cameron,  r.  170. 

V.  Ellis,  r.  310. 

• V.  Knight,  144. 

Laffcr  V,  Edwards,  47. —  r.  347. 
Lamb  v.  Archer,  r.  395. 
Laming,  Doc  v.  r.  241. 
Lampet's  case,  r.  59. 
Lampley  r.  Blower,  r.  271,  311. 
Lane  v.  Goudge,  159. 

V.  Pannel,  r.  212.  386.  451. 

Lancsborough  (Lady)  d.  Fox,  r.  198.  303. 
Langford,  Taylor  v.  92. 
Langlcy  v.  Baldwin,  r.  29G. 

,  Brougliton  r.  r.  224. 

Langton,  Jones  v.  r.  246. 
Lay,  Franklin  v.  289 —r.  257. 
Lea,  Doc  d.  Wheadon  r.  r.  164. 
Leach,  Thompson  v.  r.  446. 
Leake  v.  Robinson,  403.— r.  150. 
Le  Despenccr,  Bankcs  v.  402. 
Lee,  Burford  »).  r.  312.39.5. 

V.  Lee,  r.  452. 

Lees  V.  Mosley,  260. 
Lcgat  ti.  Scwell,  r.  236. 


Lc  Gay,  Morris  ».  r  231. 
Lcgge,  Ives  v.  r.  330. 
Legh,  Schenck  v.  110. 
Leigh  i;.  Norbury,  r.  250. 

,  Stanley  v.  r.  13. 

,  Wight  V.  r.296. 

licighton,  Carlclon  v.  r.  23. 

JyC  Jeune  v.  Lc  Jcune,  343. 

Lcmmon,  Vachcl  v.  Vacliel  and,  r.  353.  3C0. 

Lennard,  Stanley  v.  r.  297. 

Leonard,  Gjlland  v.  348. 

V.  Eurl  of  Sussex,  r.  2 15. 

Lcpine  v.  Fcrard,  r.  3)6. 
Lester  v.  Bradley,  160. 
L' Estrange,  Love  v.  r.  164. 
Lethicullicr  v.  Tracy,  r.  83. 
Levi,  Gordon  v.  r.  194. 
Lewis  d.  Ormond  v.  Waters,  276. 
Lifford  (Doe  d.)  v.  Sparrow,  348. 
Linch  V.  Cook,  r.  443. 

Lincoln  (Countess  of)  v.  Duke  of  Newcastle, 
318.— r.  319,  &.C. 

,  Duke  of  Newcastle  B.  317.— r.  319,  &,c. 

Lindo,  Mocatto  v.  r.  104. 

Lindscy  (Doc  d.  Earl  of)  v.  Collyer,  229. 

Lisle  V.  Gray.  r.  239. 

Livcrsage  (Doe  d.)  v.  Vaugban,  r.  395. 

Ii!oyd  V.  Brooking,  r.  446. 

V.  Carew,  r.  51. 

,  Harris  v.  429. 

Loddington  r.  Ki.nc,  r.  43.  262.  272.  330. 
Long  »).  Blackall,  r.  39L 

,  Prcscott  0.  r.  94. 

(Doe  d  )  V.  Prigg,  r.  141. 

Longdon  v.  Simpson,  r.  420. 
Looks,  Jennings  i.  r.  154. 
Love  V.  L'Estrange,  r.  164. 
Lovie's  (Leonard)  case,  r.  193. 
Lowdall,  Pawsey  v.  r.  450. 
Lowe,  Bennett  v.  302.— r.  395. 

t'.  Davies,  238. 

Lower,  Weale  r.  r.  196.  438. 
Lowther  o.  Condon,  r.  164. 
Lucas,  O'Ncile  r.  432. 
Lucrafl,  Roe  d.  Rew  v.  379. 
Lumb,  Cronick  v.  406. 
Luxford  V.  Checke,  r.  126. 
I/vddon,  (Jardner  v.  39. 
Lyon  V.  Michell,  257.— r.  310. 
Lytton  V.  Lytton,  r.201. 

Machcll  r.  Weeding,  289. 
Machin  v.  Reynolds,  185. 
Mackell,  Bolger  r.  r.  150. 
JMackinnon  r.  Peach,  r.  281. 

Sewell,  362. 

Maddison,  Btnyon  r.  r.  164. 
Main,  Walker  v.  r.  16.'i. 
Mailland  i:.  Chalic,  109. 
Malcolm  r.  Taylor,  372. 
Malim  v.  Barker,  r.  194. 

r.  Keighley,  r.l94. 

Mandevilo's  case,  r.  212.  215-6. 
Manficld  «.  Dugard,  r.  161. 


Ixiv 


TABLE  OF  CASES. 


IManninjr  v,  Herbert,  r.  1G5. 

]\Ianning's  case,  r.  5!). 

Markland,  Entwistlc,  v.  r.  150. 

Marks  v.  Mark?,  r.  51. 

Marlborougfh  (Duke  of)  v.  Lord  Gotlolphin, 

r.  195.  3!)3. 
Marsden,  Eyre  v.  433. 
Marsliall  v.  Bonsfield,  292. 

V.  Hill,  109. 

V.  Ilolloway,  418.— r.  1G5. 

Marten,  North  v.  239. 
Martin,  Doe  d.  Brunc  v,  438. 

,  Doe  V.  r.  419. 

,  Embrey  r.  r,  165. 

,  Doe  d.  Willis  v.  r.  193-4.  387. 

Masscnburgh  v,  Asli,  r.  360. 

Massey  v.  Hudson,  231.— r.  280. 

Masterman,  Saycr  v.  r.  236. 

Matthews  v.  Temple,  r.  387. 

Maulc,  Stone  v.  313. 

Maundrell  v.  Maundrell,  r.  193. 

Mawbey,  Hockley  ?;.258.— r.  43-4.  294.330, 

McDonald  v.  Brice,  432.— r.  420. 

Meadows  i\  Parry,  361. 

Measure  v.  Gee,  231. 

Mcllo,  Devisme  v.  r.  92. 

Meredith  v.  Meredith,  r.  390. 

Merest  v.  James,  260. — r.  44. 

Messenger,  Middleton  v.  r.  92. 

Michell,  Lyon  v.  257.~r.  310. 

Middlehurst,  Hart «.  263. 

Middleton  v.  Messenjrcr,  r.  92. 

Mildmay's  case,  r.  383. 

Mildmay  v.  Hungerford,  r.  451. 

Miles  V.  Dyer,  108. 

Miller  v.  Seagrave,  r.  260. 

Mills  V.  Norris,  95. 

,  Vivian  v.  163. 

Milner,  Slade  v.  341. 
Milward,  Rudhall  v.  r.  383. 
Mitford,  Pibus  v.  r.  228. 
Mitforth,  Fenwick  v.  r  205. 
M'Laughlin,  Hervey  v.  342. 
Mocatto  V.  Lindo,  r.  104. 
Mogg  V.  Mogg,  388-9.  r.  203.  451. 
Monckton,  Glover  v.  r.  279. 
Monkliousc  v.  Holme,  r.  164. 

V.  Monkliousc,  398. 

Montagu  v.  Nucella,  45. 
Montcith  v.  Nicholson,  3.')0. 
Montfort  (Lord),  Gibson  v.  r.  429. 
Moody,  Cunningham  v.  r.  193. 
Moore  ct  ux.?;.  Hawkins,  r.  437. 

,  Doe  d.  Hunt  v.  177. 

,  Whatford  V.  88. 

Moorhouse  7).  Wainhousc,  r.  435. 
Morgan,  Fairfield  v.  98. 
— —  B.  Gardiner,  r.  165. 

,  Jones  V.  r.  ilOl.  224-5.  236. 

,  Doe  d.  Mus-cl  v.  r.  71.  .386. 

Morpeth  (Read  unil)v.  Erignton,  r.  205. 
Morris  v.  Lo  Gay,  r.  231. 

,  Vcnablcs  ».  r.  229. 

Alorse  v.  Lord  Urmondc,  284.— r.  296. 


Mosclcy,  Lees  v.  260. 

Moriiiiier  v.  West,  301. 

Mount,  Wilson  v.  364. 

INIunday,  Godwin  v.  r.  165. 

Mundy,  Wcddell  I),  r.  102. 

Murkiii  V.  Phillipson,  187. 

Murray  v.  Addcuhrook,  332. — r.  157. 

V.  Jones,  361. 

V.  Tancrcd,  r.  151. 

Murfhwaite  «.  Barnard,  290. 

V.  Jenkinson,  290. 

Mussel  (Doe  d.)  v.  Morgan,  r.  71.  386. 
Mytton  V.  Boodle,  100. 

Nandickv.  Wilkes,  r.  240. 
Nappcr  V.  Sanders,  r.  88.  113. 
Nash  V.  Coatcs,  231. 

V.  Smith,  143. 

Naylor,  Harrison  v.  r.  155. 

Nelligan,  Nowlan  v.  r.  339. 

Ncvilc  (Doe  d.)  v.  Rivers,  287. 

Newcastle  (Duke  of)  «.  Countess  of  Lincoln, 

317.— r.319,  &c. 
,  Countess  of  Lincoln  v,  318.— r.   319, 

Sec, 
Newland,  Beckley  v.  r.  436. 

,  Cursliam,  v.  261. 

Newman  v.  Newman,  406. 
Niehol  V.  Niehol,  r.  264. 
Nicholls,  Catchmay  v.  60. 
Nichols  V.  Hooper,  r.  395. 

V.  Skinner,  r.  280. 

Nicholson,  Montcith  v.  350. 
Norbury,  Leigh  v.  r.  250. 
Norfolk's  (Duke  of)  case,  r.  395. 
Norris  Mills  v.  9.5. 
North  V.  Marten,  239. 

,  Wadlcy  v.  r.  164. 

Norton  v.  Frecker,  r.  451. 
Norwood,  Crump  v.  r.  241. 
Nottingham  v.  Jennings,  r.  400. 
Nowell,  Doe  d.  Roakc  v.  177. 
Nowlan  v.  Nelligan,  r.  3.39. 
Nucella,  Montagu  v.  45. 

Odcll,  Crone  v.  r.  92. 

O'Kccfc  V.  Jones,  75. 

Oliver,  Doe  d.  Christmas  v.  438. 

Ommaney  v.  Bcvan,  341. 

O'Neile  V.  Lucas,  432. 

Onslow  V.  South,  r.  142. 

Ormonde  (Lord),  Morse  ».284— r.  290. 

Orrery  (Lord),  Sheffield  v.r.  133.  277. 

Owens,  Doe  d.  Jones  v.  r.  282. 

Page,  Denn  d.  Briddon  v.  r.  395. 

V.  Hay  ward,  r.  14.  452. 

Palmer,  Cadell  v.  r.  391. 

V.  Holford,  r.  392. 

,  Wells  V.  r.  226. 

Palmer's  (Sir  T.)  case,  r.  443. 
Pannel,  Lancw.  r.  212.  386.  451. 
Papillon  V.  Voice,  r.  215. 
Parker,  Hoare  v.  r.  60. 
,  Goodriglit  d.  Rcvcll  v.  166. 


TABLE  OF  CASES. 


Ixv 


rarklinrst,  SmiiFi  d.  Dormer  r.  r.  110-125. 

I'arr  r.  Swindelw,  21)8. 

I'arrot,  Peck  v.  r.  43.'>. 

I'arry,  Meadows  v.  306. 

Parsons  v.  Parson.s,  378. 

Paul  ».  Coinplon,  r.  92. 

Pawlelt  ».  Pawlett,  r.  1.54. 

Pttwsey  V.  Edjjar,  r.  1G5. 

V.  Lowdall.  r.  IJO. 

Pay's  case,  r.  3!J.  127. 

Peach,  Mackinnoii  v.  3f.3.— r.  280. 

Peacock  v.  ypooncr,  r.  301). 

V.  Win,  r.  384. 

Pearsall  v.  Sim[)son,  173.  378. 
Pearson  ».  Stephen,  4G. 

,  Slurgcss  13.  334. — r.  141. 

,  Wright  V.  T.  224.  22;».  231, 

Peck  V.  Parrot,  r.  43.5. 

Pegdcn,  Goodtille  d.  Peake  v.  r.  271. 

Pells  V.  Brown,  r.  51. 

Penhayi).  Hurrell,  r.  113.  228. 

Penny,  Donn  v.  310. 

Perfect  V.  Lord  Cur7on,  r.  87. 

Perkins,  Biddle  r.  r.  414. 

Perratt,  Hyde  v.t.  GO. 

Pcrrin  v.  Blake,  r.  225. 


Pe 


rry  v 


Ph( 


ips,  78. 


Perryn,  Doe  d.  Comberbach  v.  r.  274.  330. 387. 

390. 
Peterson,  Walsh  v.  r.  97. 
Pheli[)s,  Perry  v.  78. 
Pheltiplace,  Yates  v.  r.  154. 
Phillipson,  Murkin  v.  187. 
Phipps  V.  Ackers,  188.— r.  429. 

,  Ackers  v.  429. 

D.Williams,  188.429. 

Pibus  V.  Mitford,  r.  228. 

Picrson  v.  Vickers,  233. — r.  235. 

Pigott,  Wilson  v.t.  194. 

Pilkington  (DoC  d.)  ?>.  Spratt,  75. 

Pillans,  Home  v.  348.— r.  344. 

Pinbury  v.  Elkin,  r.  281.  434-5. 

Pinnock,  Keene  v.  r.  276.  330. 

Pitt  V.  Jackson,  r.  229. 

Planner  (Doc  d.)  v.  Scudamore,  175. 

Plate!,  Stert  v.  62. 

Piatt  V.  Powles,  230. 

Plesington's  case,  r.  383. 

Plunkct  V.  Holmes,  r.  21.  302.  417. 

Polehill,  Ware  u.  314. 

Poole  V.  Poole,  235.  • 

V.  Terry,  167. 

Pope  V.  Whitcombc,  r.  43G. 
Popham,  Bamficid  r.  r.  29G. 
Porter  v.  Bradley,  r.  271. 

V.  Fox,  1 52.  405. 

Portington's  (Mary)  case,  r.  383. 
Poulden,  Snow  v.  154. 
Powell  V.  Price,  r.  24G. 
Powis  V.  Burdett,  87. 

J).  Capron,  r.  414. 

Powles,  Piatt  V.  230. 
Pratt,  Hostc  r.  94. 
Prescott  V.  Long,  r.  94. 


Preston,  Holder  v.  r.  414. 
Prcstwidgc  V.  Groombridgc,  381. 
Price,  ("handlcss  tj.  397. 

,  Courtis  V.  22G. 

,  Franks  v.  298. 

V.  Hunt,  r.  97. 

,  I'owell  w.  r.  210. 

Pri"g,  Due  d.  Long  v.  r.  1  U. 
Pritchard,  Bull  v.  189.— r.  403. 
Proctor,  Bacon  v.  1G5. 

V.  Bp.  of  Bath  and  Wells,  r.  401.411. 

Prowse  V.  Abingdon,  r.  155-0. 
Puckey,  Dcnn  d.  Webb  v.  291.  415. 
Pullyn,  Goodriglit  c.  r.  231. 
Puistord  V.  Hunter,  r.  92. 
Purcfoy  V.  Rogers,  r.  71.  440. 
Furrier,  Cuthbert  v.  355. 

Rackstraw  v.  Vile,  52. 

Radlbrd  v.  l{adford,  271. 

RandoU  d.  Doe  v.  Roake,  177. 

Ranelagh  v.  Ranelagh,  r.  280. 

Rawlcy  V.  Holland,  r.  228. 

Rawlins,  Ford  v.  143. 

Rawson,  Hodgson  v.  r.  105. 

Read  and  iMorpetli  v.  Errington,  r.  205. 

Read,  Sans!)ury  v.  r.  151. 

V.  Snell,  r.  270.  310. 

Reason,  Doe  d.  Barnard  v.  r.  273. 
Reece  v.  Steel,  225. 
Reeves  v.  Brynier,  r.  130. 
Rew  (Doe  d.)  v.  Lueraft,  379. 
Reynolds,  Machin  v.  185. 
Reynous,  JetTeries  v.  r.  103. 
Rhodes,  Shaw  v.  423.— r.  420. 
Rice,  .A.islabie  v.  r.  385. 
Richards  v.  Lady  Bergavenny,  r.  230 
Richardson,  James  v.  r.  203. 
Right  tJ.Crebcr.r.  241.390. 

d.  Day  v.  Day,  99. 

V.  Hammond,  r.  399. 

Ring  13.  Hardwickc,  415. 
Rivers,  Doe  d.  Neville  v.  287. 
Roake  (Doe  d.)  v.  Nowell,  177. 
Roberts  v.  Hyman,  r.  91. 

13.  Kingslcy,  r.247. 

Robinson  v.  Hardeastle,  r.  415. 

,  Leake  v.  .103.— r.  151. 

V.  Smith,  r.  194. 

Rod,  Green  J3.r.  281. 

Roe  d.  Thong  v.  Bedford,  225. 

d.  Clemctt  i3.  Briggs,  r.  449.  451. 

d.  Dodson  v.  Grew,  r.  292. 

d.  Sheers  i3.  JelVerev,  r.  271. 

d  Rew  V.  Lueraft,  379. 

».  Scott  and  Smart,  r.  287. 

Rogers,  Gibson  v.  r.  95.  429. 

,  Purcfoy  V.  r.  71.  443. 

Rolfe  V.  Sowerby,  IGO. 

Rom  illy  v.  James,  287. 

Romney  (Lord),  Foster  v.  275. — r.  39a. 

Ross,  (^larkc  v.  r.  165, 

j\  Ross,  354. 

Rous,  Cambridge  v.  340. 


Ixvi 


TABLE  OF  CASES. 


Routledfre  v.  Dorril,  3G1.  413. 
Roue,  Bright  v.  104. 
Rudhall  lOiMilward,  r.  3S3. 
RuiTir,  Weakley  d.  Kniirlit  v.  90. 
Rumball,  Iving  v.  r.  ll'J. 
Russell  V.  Diiciiaiiiin,  18.'}. 
Rutherford,  Gordon  v.  143. 

Salter,  Barlow  v.  r.  282. 

Saltern  ».  Saltern,  r.  451. 

Sanders,  Napper  v.  r.  88. 113. 

Sandoni,  Billings  v.  r.  339. 

Sanford  v.  Irby,  r.  198. 

Siinsbury  v.  Read.  r.  151. 

Savage,  Adams  v.  r.  228. 

Sayer,  Hughes  v.  r.  280. 

V.  Masternian,  r.  23G. 

Scarborough  (Earl  of)  v.  Doe  d.  Savile,  6 

,  Scott  V.  9G. 

Scarfield  v.  IIowcs,  r.  164. 

Scatterwood  v.  Edge,  r.  14. 129.  358.  440. 

Schenck  v.  Legb,  110. 

Scholes--,  Chapman  d.  Scholcs  v.  286. 

Schroder,  Cousins  «.  lfJ7. 

Scott  V.  Earl  of  Scarborough,  96. 

Scowcroft,  Bowes  v.  351. 

Scudamore,  Doe  d.  Planner  v.  175. 
Seagrave,  Miller  v.  r.  230. 
Scale  V.  Scale,  r.  307. 
Seaman,  Warman  v.  r.  310. 
Scarle,  Goodright  v.  r.  435. 
Seaward  v.  Willock,  267. 
Selby,  Ellis  v.  277. 

,  Doc  d.  Herbert  v.  370.  r.  99.  361. 

Severn,  Gilmore  v.  r.  94. 
Sewell,  Legat  v.  r.  236. 

,  Mackinnon  v.  363. 

Seymour,  Bennett  v.  r.  136. 

,  Coleman  v.  r.  91. 

Shapland  ?;.  Smith,  r.  229. 

Shaw  V.  Rhodes,  423 r,  420. 

V.  Weigh,  r.  252. 

Sheers  (Roe  d.)  v.  JefFcry,  r.  271. 
Sheffield  v.  Lord  Orrery,  r.  133.  277. 
Shelley's  case,  206.— r.  231,  &c. 
Shepherd  v.  Ingram,  r.  95. 
Shcrbourne  (Lord),  Fry  v.  103. 
Sherman  r.  Collins,  r.  165. 
Shippard,  Doc  d.  Watson  v.  r.  358. 
Shirley  v.  Ferrers,  r.  60. 
Sidney  v.  Vaughan,  r.  150. 
Silvester  v.  Wilson,  r.  229. 
Simmons,  Hinckley  v.  339. 
Simpson,  Longdon  v.  r.  420. 

,  Pcarsalli).  173.  378. 

Sitwell  V.  Barnard,  r.  150. 
Skey  V.  Barnes,  181. 
Skilbeck,  Bradshaw  v.  313. 
Skinner,  Nichols  ».  r.  280. 
Slack,  Belk  v.  r.  141.  335. 
Slade  r.  Milner,  341. 
Slater,  Denn  d.  Slater  v.  287. 
Smart  v.  Clark,  346. 
•Smith  V.  Lord  Camelford,  r.  193-4. 


Smith,  Doc  d.  Candler  v.  232. 

,  Clarke  V.  r.  427. 

,  Nash  V.  143. 

d.  Dormer  v.  Parkhurst,  r.  llG-125. 

,  Robinson  v.  r.  194, 

,  Shapland  w.  r.  229. 

V.  Smith,  154.  343. 

V.  Vaughan,  r.  141.  335. 

(Doe  d.)  V.  Webber,  283. 

Smitliert).  Willock,  380. 

Sncll,  Read  v.  r.270.  310. 

Snow  V.  (Guttler  or  Tucker,  r.  54. 

,«.  Poulden,  154. 

Walker  u.  r.  ^40. 

Somervillc  (Lord),  Southey  v.  r.  395. 

Sondav's  case,  r.  383. 

Soulc  V.  Gerrard,  r.  97. 

South,  Onslow  V.  r.  142. 

,  Wilkinson  V.  310. 

Southampton  (Lord)  v.  Marquis  of  Hertford, 
417. 

Southby  V.  StonchoU'^e,  r.  356. 

Southcot  V.  Stowell,  r.  226. 

Southey  v.  Lord  Somerville,  r.  395. 

Sowell  V.  Garrett,  r.  97. 

Sowcrby,  Rolfe  v.  160. 

Spalding  v.  Spalding,  r.  71. 

Sparrow,  Dne  d.  Litlbrd  v.  348. 

Speed,  Davics  v.  r.  21.  440. 

Spencer,  Bagshaw  v.  r.  229. 

V.  Bullock,  167. 

Spittle  and  Davie's  case,  384. 

Spooner,  Peacock  v.  r.  309. 

Spratt,  Doe  d.  Pilkington  v.  75. 

Spring  V.  Caesar,  174. 

Stables,  Blackburne  v.  245,— r.  230. 

Stafford  (Marquis  of).  The  King  v.  274. 
Standerwicke,  Gawler  v,  r.  155.  157. 
Stanley  v.  Leigh,  r.  43. 

V.  Lennard,  r.  297. 

V.  Stanley,  82. 

V.  Wise,  r.  434. 

Steel,  Reece  v.  225. 

Stejihen,  Pearson  v.  46. 

Stephens  v.  Stephens,  r.  43.  367.  429. 

Stert  V.  Platcll,  82. 

Steward,  Fulmerston  v.  r.  129. 

StiHingflect,  Ilayward  v.  r.  427. 

St.  Joim  (Lord),  Whitbread  v.  94. 

Stone  ».  Maule,  313. 

Stonehoiise,  Southby  w.r.  356. 

Stones,  Bullock  v.  r.  427-8. 

Stonor  V.  Curwcn,  312, 

Stovin,  Fra^^^  v.  291. 

Stowell,  Southcot  «.  r.  226. 

StrealfitJd  v.  Slrcatrield,  r-  246. 

Strong  (Doe  d.)  v.  Goff,  241.— r.  234. 

Stuart  «.  Bruerc,  r.  150. 

Studholme  v.  Hodgson,  r.  428. 

Sturgess  V.  Pearson,  334. — r.  141. 

Suretees,  Barker  v.  r.  97. 

Sussex  (Earl  of),  Leonard  ?>.  r.  245. 

Sutton,  Atl.  Gen.  v.  r.  2;)6. 

,  Haskcr  v,  101. 


TABLE  OF  CASES. 


Ixvii 


Pwindcls,  Parrt).  298. 
Sydiiiliam,  'I'reponwell  t>.  415. 
Syinons,  Edwards  v.  lo8. 

Talbot,  Duke  ofClKindns  v.  r,  155-G. 

Tancrcd,  Murray  v.  r.  151. 

Tankervile  (Karl  of),  Dennett  v.  232.— r.  2i.'4. 

Target  V.  Gaiinl,  r.  282.  395. 

Tate  V.  Clarke,  257. 

,  Gibbst).  311,— r.  331). 

Taylor,  Austen  v.  r.  244. 

V.  Bacon,  r.  158. 

,  Gossajjc  V.  r.  212. 

,  Kitigf  V.  344. 

V.  Lang  ford,  f)2. 

,  Malcolm  V.  372. 

Taynton,  Crilclictl  v.  190. 
Tcbbs  V.  Carpenter,  r.  92. 
Temple,  Matthews  v.  r.  387. 
Tenny  d.  Ag^ar  v.  Agar,  267. 
Terry,  Poole  v.  1 67. 
Test,  Dcanc  v.  181.  337. 
Tliecbridgc  v.  Kilburnc,  r.  308. 
Thellusson  V.  Woodford,  r.  391.  417. 
Thompson  v.  Dow,  r.  1G5. 

V.  Leach,  r.  446. 

Tiiong  V.  Bedford,  r.  224. 

(Ree  d.)  v.  Bedford,  225. 

Thornburgh,  White  v.  r.  244. 
Thrustout  d.  Small  v.  Dmny,  r.  278. 
Tichborn,  Corbet  v.  r.  443. 
Tichencr,  Jeal  v.  r.  165. 
Tilbury  v.  Barbut,  r.  399. 
Tippin  V.  Cosin,  r.  226.  229. 
Toldervy  v.  Colt,  358. — r.  50. 
'I'oUeniaehc  v.  Coventry,  401. 
Tomlinson,  Wall  v.  r.  331. 
Tooley  (Doc  d.)  v.  Guniiis,  r.  395. 
Toovey  v.  Basi^ctt,  279. 
Torin,  Jones  v.  45. 
Torres  v.  Franco,  106. 
Tracy,  Lethieullier  v.  r.  88. 
Trafford  v.  TralVord,  r.  314. 
TrcgonwcU  i'.  Sydcnliam,  415. 
Trevilliin,  Croker  v.  r.  381. 
Trevor,  Ilobson  v.  r.  436. 

V.  Trevor,  r.  246. 

Trickey  v.  Trickcy,  410.— r.  431. 
Tristram,  Barringtun  v.  94. 
Trollope,  Dubber  d.  Trollope  v.  r.  230. 
Trotter  v.  Williams,  r.  339. 
Tucker  v.  Harris,  139. — r.  83. 
— — ,  Snow  V.  r.  54. 
Tugman,  Brecdon  v.  160. 
'J'unstall  V.  Hraelicn,  r.  165. 
Turner,  Atkinson  v.  r.  167.  428. 

,  Brooke  v.  266. 

V.  Capel,  311. 

V.  Moor,  345. 

Twining,  Britton  v.  309. 
Tytc  V.  Willis,  r.  400. 

Usher  (Doe  d.)  v.  Jesscp,  101.  357. 


Vachcl  V.  Vacliol  and  Lcmmon,  r.  358.  360. 
S'anderzec  i'.  Aclom,  r.  194. 
Vane  v.  Lord  Dungannun,  r.  194. 
Vangliant).  Burslein,  3iil.  r.  317. 

,  Doe  d.  Liversago  i'.  r.  395. 

,  Sidney  v.  r.  150. 

,  Smilh  V.  r.  141.  .33.'). 

Vaux's  (Lord)  case,  r.  06. 

Vawdry  v.  Geddes,  191.— r.  403. 

Venables  v.  Morris,  r.  229. 

Vcre,  (irilliths  v.  r.  420. 

Vernon,  Boothby  v.  r.  447. 

Viekcrs,  Pierson  v.  233. — r.  235. 

Vile,  Haekslruw  v.  52. 

Vincent,  Habergliam  v,  449. — r.  450.  451. 

Vivian  v.  Mill.-,  163. 

Voice,  Papillon  v.  r.  245. 

Wadlcy  w.  North,  r.  164. 
Wainhoiisc,  Moorliousc  v.  r.  435. 
Wake,  Dod  v.  406. 
Walcotw.  Hall,  r.  157. 
Walker  v.  Main,  r.  165. 

V.  Shore,  93. 

V.  Snow,  r.  240. 

Wall  V.  Tomlinson,  r.  331. 
Wallen  ».  Andrewes,  265. 
Wal[)olc  V.  Lord  Conway,  r.  193. 
\\'alsli  V.  Peterson,  r.  97. 
Walter  v.  Drew,  r.  71.  303. 
Ward,  Andrce  v.  379. 

,  Avelyn  v.  r.  358.  36L 

V.  Bevil,  295. 

,  Doe  d.  Dollcy  v.  r.  159. 

,  Kinch  V.  231.— r.  307. 

Wardc,  Pristow  v.  r.  194. 
Ware  v.  Polhill,  314. 
Waring  v.  Coventry,  r.  414. 
Warman  v.  Seaman,  r.  310. 
Warter  v.  Warier,  188. 
Warwick  v.  Warwick,  r.  247. 
Waters,  Lewis  d.  Ormond  v.  276. 
Watkins  v.  Cheek,  163. 
Watson  V.  Hayes,  160. 

(Doe  d.)  I).  Shipphard,  r.  358. 

Weakley  d.  Knight  v.  Kugg,  90. 
Wealc  V.  Lower,  r.  196.  438. 
Wealthy  v.  Bosville,  r.  71. 
Webb  V.  Hearing,  r.  172.  400. 

V.  Webl),  r.  308.  421. 

Webber,  Doe  d.  Smilh  v.  283. 
Webster  v.  Hale,  346. 
Weddell  V.  Mundy,  r.  102. 
Weeding,  Machel"  v.  289. 
Weigh,  Shaw  r.  r.  252. 
Wellington  v.  Wellington,  r.  282. 
Wells,  Backhouse  v.  r.  251.  255.  262. 
West,  Mortimer  v.  301. 

V.  Errisse)',  r.  246-7. 

Wcstcomb,  Jones  r.  r.  361. 
Wetton,  Doe  d.  Barnfleld  v.  302.— r.  71. 
Wharrcy,  Frogmorton  r.  r.  212 
Whatelcy  v.  Kemp,  r.  247. 
Whatford  v.  Moore,  88. 


Ixviii 


TABLE  OF  CASES. 


Whcedon  (Doc  d.)  r.  Lee,  1G4. 

Wliculer  V.  Duke,  r.  249. 

Whitbrcad  v.  Lord  St.  John,  91. 

Whitcombe,  Pope  r.  r.  43t). 

Wliite,  Goodrigla  d.  Brooking  v.  r.  203. 

V.  Collins,  r.  230.  240. 

White  V.  Carter,  r.  244. 
——  V.  Tliornburgh,  r.  244. 

,  Ginger  d.  White  v.  r.  296. 

Whitingv.  Wilkins,  r.  230. 
Whittaker,  Horton  v.  r.  88.  358. 
Wickctt,  Gulliver  v.  r.  5L  3GL 
Wight  V.  Leigh,  r.  296. 
Wilkes,  Nandick  v.  r.  246. 
Wilkins,  Whiting  ».r.  230. 
Wilkinson,  Branstrom  v.  171. 

V.  South,  310. 

Williams,  Bland  v.  185. 

V.  Jekyl,  r.  248. 

,  Kevern  v.  151. — r.  152. 

,  Phipps  V.  188.  429. 

■ ,  Trotter  v.  r.  339. 

Williamson,  fligdcn  v.  r.  43G. 
Willis  V.  Hiscox,  r.  239. 

(Doed.)  V.  Martin,  r.  193-4.  3S7. 

,  Tyte  V.  r.  400. 

Willock,  Seaward  v.  267. 


Willoclc,  Smither  v.  380. 
Wills,  Biliingsley  v.  r.  141.  335. 

V.  Palmer,  r.  226. 

Wilson,  Hallifax  v.  203. 

V.  Mount,  304. 

V.  Pigott,  r.  194. 

,  Silvester  v.  r.  229. 

Win,  Pearce  v.  r.  384. 
Wire,  Stanley  v.  r.  434. 
Withers,  Allgood  v.  r.  243. 

,  King  V.  r.  165.  435. 

Wilts  V.  Boddington,  r.  194. 
Wolcott,  Cripps  V.  r.  141. 
Wood's  case,  r.  435. 
Wood,  Gurnul  v.  r.  435. 
Wood  lord,  Tlicllusson  v.  r.  391.  417. 
WoodlilFw.  Drury,  r.  39. 
Woodward  v.  Glasbrook,  r.  102. 
Wrigiit,  Goodrigiit  ».  r.  257. 

V.  Hammond,  r.  399. 

,  Jcsson  V.  233.— r.  224. 

V.  Kemp,  r.  102. 

V.  Pearson,  r.  225.  229.  231. 

V.  Wright,  r.  436. 

Yates  V.  Phctliplace,  r,  154. 
Young,  Chatteris  v.  r.  358. 


PAET  I. 

THE  VARIOUS  KINDS  OF  LNTERESTS,  AND  THE  DIFFERENT 
SORTS  OF  CONDITIONS  AND  LIMITATIONS  ON  WHICH  THEY 
DEPEND  OR  BY  WHICH  THEY  ARE  CREATED  OR  AFFECTED, 
ANALYTICALLY  ARRANGED,  DEFINED,  AND  DISTINGUISHED. 


Vol.  IL— 1 


[   3   J 


CHAPTER  THE  FIRST. 

THE  DIFFERENT  KINDS  OF  CONDITIONS,  ON  WHICH  INTER- 
ESTS MAY  DEPEND,  OR  BY  WHICH  THEY  MAY  BE  AF- 
FECTED, ANALYTICALLY  ARRANGED,  DEFINED  AND  DIS- 
TINGUISHED. 

1  It  is  impossible  to  obtain  an  accurate  knowledge  of  Knowlrdge 
the  interests  which  form  the  subject  of  the  following  of  conditions 

pages,  without  an  accurate  acquaintance  with  the  various  is  essentially 
kinds  of  conditions  on  which  they  depend,  or  by  which  they  necessary. 
may  be  affected. 

2  Conditions,  in  the  widest  sense  of  the  term,  may  be  Division  of 
be  divided  into  conditions, 

I.  Express,  which  arc  either  in  the  widest 

1.  Direct,  or  sense  of  the 

2.  Indirect.  '  term. 
II.  Implied. 

3  Again;  they  may  be  divided  into  A  second  di- 

I.  Conditions  properly  so  called.  visionofcon- 

II.  Defeasances.  ditions,inthc 

III.  Special  or  collateral  limitations,  in  the  origi-  widest  sense 
nal  sense  of  limits  or  bounds.  of  the  term. 

4  Conditions  properly  so  called  may  be  distributed  into  Division  of 
several  kinds:  conditions 

I.  General  conditions.  properly  so 

1.  Subsequent, or  simply  destructive,  which,  called. 

as   affecting  lauds  or  tenements,  are 
either 

(1)  Of  the  concise  or  implied  form,  or 

(2)  Of  the  unconcise  or  explicit  form. 

2.  Precedent,  or  simply  creative, 

(on  which  the  following  interests  depend: 

viz. 
Interests  limited  hypothetically ;  [  4  J 

Springing  interests ; 
Alternative  interests ; 
Contingent  interests  in  the  whole  or  the 

immediate  part  of  a  reversion,  and. 
Contingent  remainders.) 

3.  Mixed. 

(1)  Destructive  and  creative, 
(on  which  the  following  interests  depend: 
viz. 


[  4  ]  I.  1.]  AN  ORIGINAL  VIEW  [§  5—11. 

Interests  under  augmentative  limitations. 
Interests  under   diminuent    limitations ; 

and 
Interests  under  conditional  limitations.) 
(2)  Destructive  andaccelerative, 
or  clanses  of  cesser  and  acceleration. 
II.  Special  conditions. 
Definition  of      "An  express  condition,  as  the  term  imports,  is  a  5 

an  express     condition  expressed  in  words:  and  it  is  sometimes 
condition.       termed  a  condition  in  deed. (a) 

—  of  an  im-      An  ''implied  coNDiTioN,\vhich  is  sometimes  term-  6 
plied    condi-  ed  a  condition  in  law,  is  a  condition  which  is  not 

tion.  expressed,  but  is  annexed  by  construction  of  law,  for  the 

avoidance  of  an  estate  in  a  particular  event.(i) 

—  of  a  direct      A  direct  condition,  in  its  widest  sense,  is  an  by-  7 
condition.       pothetical  or  suppositive  member  of  a  sentence,  upon 

which  the  creation,  enlargement,  diminution,  or  defeasance  of 

an  estate,  or  the  suspension  of  the  beneficial  interest  in 

of  an  in-  property,  expressly  or  constructively  depends.     «=  An  8 

direct  condi-  indirect  condition  is  one  that,  in  certain  cases  at 

tion.  least,  is  denoted  by  the  word  "for,"  in  grants  of  one  thing 

for  another,  which  is  not  granted  or  covenanted  to  be  given 

or  done  in  return. (c) 

—  of  a  gene-  A  ^general  condition(^)  is  ^a  clause  providing,  9 
[  5  ]  °  or  constructively  importing,  that  an  estate  shall  be 
ralcondition.  created,  enlarged,  diminished,  or  defeated  in  a  given  10 
See  §  16.  event. (e)  A  ^special  condition  is  a  clause  which 
Definition  of  merely  suspends  an  estate,  or  the  beneficial  interest  therein, 
a  special  con-  to  answer  a  special  purpose.  Of  this  nature  are  clauses  that 
diiion.  provide,  that  in  case  the  rent  reserved  on  a  lease  shall  be  in 
Examples  of  arrear,  the  lessor  may  enter,  and  hold  until  the  arrears  of 
special  con-  rent  be  satisfied ;(/)  and  clauses  e  providing,  that  when  any 
ditions.           heir  of  the  grantee  of  a  rent  newly  created,  should  be  under 

age,  the  rent  should  cease  during  his  non-age  ;  and  clauses 

whereby  lands  are  limited  to  the  use,  intent  and  purpose, 

that  if  a  rent-charge  should  be  in  arrear,  the  grantee,  his 

heirs  or  assigns,  might  enter  until  the  rent  should  be  paid 

and  satisfied. (§•) 

Division  of        General  conditions  are  usually  divided  into'*  con-         11 

general  con-  ditions  precedent  and  subsequent(A).     But  it  would 

ditions.  

(a)  See  Co.  Litt.  201  a.     Shep.  T.  117. 

(b)  See  Shop.  T.  117,  118.     Co.  Litt.  201  a  ;  332  b.     Litt.  378. 

(c)  See  Co.  Litt.  204  a.     Shep.  T.  124,  125,  and  note  17. 

(d)  See  Co.  Litt.  203,  Butler's  note  (3). 

(e)  See  Co.  Litt.  204  a.     Shop.  T.  117. 

(/)  Litt.  327.     Co.  Litt.  203  a,  Butler's  note  (3). 
(g)  See  Fearne,  .527,  528. 
(A)  Co.  Litt.  201  a.     Shcp.T. 


I.   1.]  OF   EXECUTORY  INTERESTS.   [§  12—17.  [   5  ] 

seem  that  they  may  be  more  properly  distributed,  as  above, 
into  subsequent,  precedent,  and  mixed. 

12  A  CONDITION    SUBSEQUENT    is  a  direct   condition  Definition  of 
that  is  'annexed  to  an  estate  or  interest  created  by  a  condition 

a  previous  clause  or  instrument,  and  upon  the  fulfilment  or  subsequent. 
upon  the  breach  of  which,  according  to  the  form  of  the  con- 
dition, such  estate  or  interest  is  to  be  prematurely(z)  defeated  See  §  26,  34, 
or  determined,  and  no  other  estate  is  to  be  created  in  its  36, 
room:(/i-)  as,  'where  a  lease  is  made  for  years,  on  condition  Sec  §  149. 
that  the  lessee  shall  pay  10/.  to  the  lessor  at  Michaelmas,  or 
else  his  lease  shall  be  void.(/) 

13  A  CONDITION    PRECEDENT    Is   a   dircct    condition of  a  con- 

which  is  not  annexed  to  an  estate  created  by  a  pre-  dition  prece- 

vious  clause  or  instrument,  but  "upon  the  fulfilment  of  which  dent, 
an  estate  or  interest  is  to  arise  or  be  created:  as,  where  it  is  See  §  149, 
agreed  that  '\{  J.  S.  pay  me  10/.  at  Michaelmas,  he  shall  have  [  ^  ] 

such  a  ground  of  mine  for  10  years. (//)  137,  147. 

14  A  MIXED  CONDITION  is  a  direct  condition,  which — ofa  mixed 
is  annexed  to  an  estate  created  by  a  previous  clause  condition. 

or  instrument,  and  is  destructive  in  its  operation  as  regards 
that  estate,  and  creative  or  accelerative  as  regards  another 
estate. 

15  There  are  two  forms,  as  we  have  already  seen.  Two  forms  of 
of  conditions   subsequent,  as   they   afiect  lands   or  conditions 
tenements.  subsequent. 

16  A  condition   subsequent   of  the  concise    or  im of  a  con- 

PLiED  form,  is  a  proviso  subjoined  to  a  grant,  lease,  dition  subse- 

or  devise,  and  beginning  with  the  words,  on  condition  &c.,  quent  of  the 
provided  &c  ,  or  so  that  &c.,  or,  in  the  case  of  a  lease  for  concise  or 
years,  with  words  ofa  similar  import,  and  not  followed  by  implied  form, 
any  remainder  over,  or  by  any  stipulation  or  regulation  for  ^^e  §  39. 
the  reverter  or  transfer  of  the  property,  but  '"ea*  vi  propriety  ^^^  v  1^» 
(?n)  conferring  "on  the  donor,  devisor,  or  lessor,  and  his  re-  ^^^' 
presentatives,  the  right  of  bringing  an  action  to  avoid  the 
estate. (n) 

17  A   condition    subsequent    of    the   unconcise    or of  a  con- 

ExpLiciT  form,  is  a  sentence  subjoined  to  a  grant,  dition  subse- 

lease,  or  devise,  providing,  in  terms  or  in  ellect,  that,  in  a  quent  of  the 
given  event,  the  property  comprised  in  such  grant,  lease,  or  unconcise  or 
devise,  shall  revert  "to  the  donor,  lessor,  or  devisor,  or  his  explicitform. 
representativcs,(o)  before  the  estate  created  by  such  grant, 

(i)  See  Prest.  Shep.  T.  117,  118,  127. 

(A:)SoeShcp.  T.  117. 

(l)  Shcp.  T.  118. 

(//)  Shop.  T.  iir. 

(m)  See  LiU.  328,  329.     Shcp.  T.  121. 

(n)  See  Frest.  Shop.  T.  153. 

(o)  See  Shep.  T.  120,  127,  149. 


[  6  ]  I.  l.J  AN   ORIGINAL  VIEW  [§  18—21. 

lease,  or  devise,  shall  have  filled  up  the  measure  of  duration 
given  to  it  thereby,  and  Pserving  to  confer  on  him  and  them, 
in  that  event,  the  right  of  bringing  an  action  to  avoid  the 
estate  accordingly,  {p) 
The  two  The  following  passage  from  Slieppard's  Touchstone  will 

forms  ofcon-  clearly  elucidate  the  foregoing  definitions  of  the  two 
ditionssub-    different  forms  of  conditions  subsequent :    "Know  18 

sequent  11-      therefore,  that,  for  the  most  part,  conditions  have 
[  7  ]  conditional  words  on  their  frontispiece,  and  do  begin  there- 

lustrated.  with  ;  and  that,  amongst  these  words,  there  are  three  words 
that  are  most  proper,  which,  in  and  of  their  own  nature  and 
efficacy,  without  any  addition  of  other  words  of  re-entry  in 
the  conclusion  of  the  condition,  do  make  the  estate  condi- 
tional, as  jiroviso,  ita  quod,  and  sub  conditione.  And  there- 
fore, if./?,  grant  lands  to  B.,  to  have  and  to  hold  to  him  and 
his  heirs,  provided  diat,  or  so  as,  or  under  this  condition,  that 
B.  do  pay  to  Ji.  10/.  at  Easter  next;  this  is  a  good  condition; 
and  the  estate  is  conditional,  without  any  more 
words.     But  there  are  other  words,  as,  Si,  si  con-  19 

tingaf,  and  the  like,  that  will  make  an  estate  con- 
ditional also ;  but  then  they  must  have  other  words  joined 
with  them,  and  added  to  them,  in  the  close  of  the  condition, 
as,  that  then  the  grantor  shall  re-enter,  or  that  then  the  estate 
shall  be  void,  or  the  like.  And  therefore,  if./?,  grant  lands 
to  B.  to  have  and  to  hold  to  him  and  his  heirs ;  and  if,  or, 
but  if  it  happen,  the  said  B.  do  not  pay  to  A.  10/.  at  Easter, 
without  more  words,  this  is  no  good  condition  ;  but  if  these, 
or  such  like  words  be  added,  that  then  it  shall  be  lawful  for 
Ji.io  re-enter ;  then  it  will  be  a  good  condition. "(^) 
Definition  of     Mixed  conditions  in  general  have  already  been  20 

a  mixed  con-  ,jefined.     A  mixed  condition  of  the  destructivk 
dition  of  the  ^^^  creative  kind,  is  a  direct  condition  that  is  annexed  to 
destructive     ^^^  estate  created  by  a  previous  clause  or  instrument,  and 
and  creative  ^^^^^^  ^j^^  fulfilment  of  which,  such  estate  is  to  be  defeated, 
S  "  i  12  16  ^"^  another  estate  is  to  arise  in  its  room. 

ee^     ,     ,      rpi^ggg  |^gj_j^gj^jJQj^g^(.Qf^(3itiQj^s^l,o^vever,  which  are  here 
■»|.'    ,  termed  mixed,  or  the  limitations  of  which  they  form  a  part. 

Mixed  con-  frenuentiy  designated  conditions  precedent,  in  contradis- 

ditionssorae-  .     i        .  ■>  ^  ,.  .  {•  ,  .  ,  j- 

times  termed  tmction  to  those  conditions  proper  which  are  termed  condi- 
preccdent  ^^0"^  subsequent,  and  are  simply  destructive.  And,  on  the 
and  some-  Other  hand,  they  are  sometimes  termed  conditions  subse- 
times  subse-  quent,  in  contradistinction  to  those  clauses  which  are  simply 
quent.  creative. 

Mixed  con-        From  these  mixed  conditions,  we  must  be  care-  21 

ditions  dis-     f^l  to  distinguish  those  conditions  subsequent  in 

(p)  forest.  Shcp.  T.  153. 

(q)  Shep.  T.  121,  122.     See  also  Co.  Litt.  330,  331. 


I.  1.]  OF  EXECUTORY  INTERESTS.  [§  22.  [  7  ] 

which  the  act  required  in  tlie  condition  to  be  performed,  is,  tinguished 
to   create   an    estate  :   as   •'where   one   makes  a  feolTment  [  ^  ] 

in  fee,  on  condition  that  the  fcoflee  shall  make  an   estate  from  certain 
back  again  in  tail  to  tlie  feoffor,  and  his  wife,  l)cforc  such  a  others. 

day.(r) 
22  A  MIXED  condition  of  the  destructive  and  ac-  Definition  of 

CELERATIVE    KIND,  Or;    A    CLAUSE    OF    CESSER    AND  a  inixcd  COU- 

ACCELERATION,  is  a  proviso  following  the  limitation  of  seve-  dition  of  the 
ral  successive  estates  in  the  same  subject  of  property,  and  in  destructive 
effect  directing,  that,  in  a  given  event,  one  or  more  of  the  'I'^d  accele- 
first  limited  of  such  estates  shall  cease,  and  the  estate  or  rutive  kind, 
estates  in  remainder   be  thereupon  accelerated,  and  take 
effect  as  if  such  first  limited  estate  or  estates  had  expired 
according  to  the  terms  of  their  original  limitation. 

Lands  were  devised  to  B.  for  life,  remainder  to  trustees  y^^  /^ar/  of 
to  preserve,  &:c.,  remainder  to  7?.'s  first  and  other  sons  in  tail  Scai-bo- 
male,  with  similar  remainders  in  favour  of  /.,  a  younger  rough  v. 
brother  of  li.,  and  his  sons,  and  of  F.,  another  younger  bro-  Doe  d. 
ther  of  7?.,  and  his  sons,  and  of  other  younger  brothers  of  7?.,  Savile,SAd. 
and  their  sons,  respectively.     And  the  will  contained  a  pro-  &  El.  897. 
viso,  that  if  the  title  to  a  certain  Earldom  should  descend  to 
any  of  them,  the  said  i?.,  /.,  F.,  &c.,  or  to  any  of  their  sons, 
(within  any  of  the  lives,  <S:c.)  then,  and  in  such  case,  and  as 
and  when  the  title  should  conic  to  him  or  them,  the  estate 
which  he  or  they  should  then  be  entitled  to  in  the  lands, 
under  or  by  virtue  of  the  will,  should  cease,  determine,  and 
become  void ;  and  the  lands  should  immediately  go  to  the 
person  or  persons,  who,   under  the  limitations  aforesaid, 
should  then  be  next  in  remainder  expectant  on  the  decease 
and  failure  of  issue  male  of  the  person  to  whom  the  title 
should  so  come,  in  the  same  manner  as  such  person  or  ])er- 
sons  so  in  remainder  would  take  the  same  by  virtue  of  the 
will,  in  case  he  or  they  to  whom  the  title  sliould  come  was 
or  were  actually  dead  without  issue.     The  title  descended 
to  i?.,  while  in  possession  of  the  lands,  whereupon  /.  took  pos- 
session; and  he  and  his  eldest  son  joined  in  suffering  a  re- 
covery.    It  was  held  by  the  Court  of  Exchequer  Chamber, 
reversing  the  judgment  of  the  Court  of  King's  Bench,  that  the 
proviso  was  a  proviso  of  cesser  and  determination  only  of  the 
old  estates,  so  as  to  accelerate  and  let  in  the  enjoyment  of  the 
remainders  over,  and  not  a  proviso  which  created  any  new  [  9  ] 

estates  in  remainder;  and  consequently,  that,  by  the  recovery, 
the  old  remainder  for  life  in  F.,  and  the  old  remainder  in  tail 
in  his  son,  were  effectually  barred.  (3  Ad.  &  El.  965.)  For, 
as  Lord  Chief  Justice  Tindal  observed,  the  effect  of  the  pro- 
viso was,  that  if  the  title  descended  upon  a  tenant  for  life, 

(r)  Prest.  Shop.  T.  134.     And  see  LiU.  3o2— 358. 


[  9  ]  I.  2.]  AN   ORIGINAL  VIEW  [§  23—25 

the  estate  of  such  tenant  for  life,  and  the  estates  tail  in 
remainder  in  all  his  sons  successively,  ceased,  by  necessary 
implication  ;  if  it  descended  upon  one  of  the  sons,  the  tenants 
in  tail,  the  estate  tail  in  such  son  of  the  tenant  for  life  failed 
only,  and  the  manors  would  go  over  to  his  next  brother  in 
tail.  (lb.  966.)  And  that  the  remainder-men  were  to  take 
as  if  the  prior  estates  had  determined  by  the  natural  course 
of  their  determination,  ?^ir.  the  death  of  the  person  to  whom 
the  title  descended,  and  the  failure  of  his  issue,  which  provi- 
sion pointed  to  the  mere  blotting  out  of  the  prior  estates,  and 
to  the  accelerating  the  old  estates  in  remainder  already 
created  by  the  will,  and  not  to  the  creating  of  new  estates, 
(lb.  967.) 

=  Defeasances  are  provisoes  of  the  same  import  23 

Definition  of  and  efficacy  as  proper  conditions*  subsequent,  but 
a  defeasance,  are  contained  in  a  distinct  deed,  either  delivered  at  the  same 
*  See  §  12,    time  with  the  deed  to  which  the  condition  relates,  or,  except 
16-19.       '    in  the  case  of  things  executory  or  chattels,  delivered  after  the 
deed  to  which  the  condition  relates.(.s). 


[  10  ]  CHAPTER  THE  SECOND. 

THE  DIFFERENT  KINDS  OF  LIMITATIONS,  IN  THE  ORIGINAL 
SENSE  OF  LIMITS,  BY  WHICH  INTERESTS  MAY  BE  REN- 
DERED DETERMINABLE,  ANALYTICALLY  ARRANGED,  DE- 
FINED,   AND    DISTINGUISHED. 

Two    senses  Great  confusion  has  frequently  arisen  from  not  24 

of  the  word  observing  that  the  word  limitation  is  used  in  two 
"limitation,"  different  senses  :  the  one  of  which  may,  for  the  sake  of  con- 
viz. —  venience  of  distinction,  be  termed  the  original  sense  ;  name- 
the  original  ly^  that  of  a  member  of  a  sentence,  expressing  the  limits  or 
sense,  bounds  to  the  quantity  of  an  estate ;  and  the  other,the  deriva- 
and  the  deri-  tive  sense;  namely,  that  of  an  entire  sentence,  «creating(a) 
vative  sense,  and  actually  or  constructively  marking  out  the  quantity  of 

an  estate. 
See  §  3.  In   the  preceding   chapter.   Conditions,   in   the  25 

widest  sense  of  the  term,  were  divided  into  Condi- 
tions properly  so  called.  Defeasances,  and  Special  or  Collate- 
ral Limitations  in  the  original  sense.     The  first  two  formed 
the  subject  of  that  chapter.     It  will  now  be  necessary  brief- 
ly to  treat  of  the  third. 

(s)  See  Co.  Litt.  236  b;  237  a.     Prest.  Shep.  T.  126. 
(a)  See  Prest.  Shep.  T.  117. 


I.  2.]  OF  EXECUTORY  INTERESTS.     [§2G— 32.  [   10  ] 

26  A  limitation,  in  the  original  sense  of  a  limit  or  Definition  of 
bonnd,  wliich,  as  well  as  an  implied  condition,  is  a  limitation, 

''sometimes  called  a  condition  in  law, (6)  is  a  restrictive  ex-  in  the  ori- 
pression,  whicli  serves  to  mark  out  the  limits  or  *=  bounds  of  ginal  sense, 
an  estate.(c)  ^^^^  §  6. 

27  Sucli  limitations  may  be  divided  into —  ^^^'  §  1^'  ^^■ 

I.  General.  ^^* 

1.  Expressed.  Division  of 

2.  Implied.  such  linni- 

II.  Special  or  collateral.  tations. 

1.  Regular.  [  11   ] 

(1)  Direct. 

(2)  Indirect. 

2.  Irregular. 

28  A  GENERAL  limitation  is  a  restrictive  expression,  Definition  of 
whicli  determines  the  general  class  or  denomina-  a  freneral 

tion,  in  point  of  quantity  of  interest,  to  which  an  estate  be-  limitation, 
longs,  by  confining  it  to  the  period  during  which  there  shall 
be  a  succession  of  heirs  general  or  special,  or  of  persons  fill- 
ing a  given  corporate  capacity,  or  to  the  period  of  a  life  or 
lives,  or  of  a  certain  number  of  years. 

29  It  is  necessary  to  the  very  existence  of  law,  that  i^ecessityfor 
estates  should  be  distributed  into  certain  classes,       '^'°".  ° 

known   by  certain  denominations,   and    that  every  estate  ^^^^'^^  ^"^*\ 
should  be  referable  to  one  or  other  of  these  classes.     And  ^  ^^^^^'  ^" 
hence  a  general  limitation,  which,  as  we  have  seen,  deter-  r       ^         j 
mines  the  general  class  and  denomination  to  which  an  estate  ijnihahon  to 
belongs,  is  incident  to  every  estate.  every  estate 

30  The  general  limitation,  however,  may  either  be  p         i  r    * 
expressed  by  the  words  of  the  instrument  creating  jtatjoi^g  ^uu 
the  estate,  or  may  be  implied  by  construction  of  law.  ^^  express  or 

31  Thus,  where  land  is  granted  to  v^.  and  his  heirs,  implied. 

the  words,  "and  his  heirs,"  constitute  a  general  ^          i^      r 
,.     .      .  ,  '     ^  ,  '      ,.     .        r    ,     ^  liixampics  ot 

hmitation:  they  serve  to  mark  out  the  hmits  of  the  estate;  „,.nr^c«  m^n 

to  ascertain  the  quantity  ot  interest ;  and  thus  to  determine  ^^^i  limit. 
to  what  general  class  and  denomination  the  estate  belongs;  aiioas, 
denoting  that  the  estate  is  one  of  that  class  of  estates  which 
are  termed  estates  in  fee.  And  similarly  the  words, "  and 
the  heirs  of  his  body,"  "for  life,"  "for  years,"  are  general 
limitations,  denoting  that  the  estates  are  respectively  es- 
tates tail,  freeholds  not  of  inheritance,  and  chattel  in- 
terests. 

32  Where  land  is  granted  to  ,/?.  and  his  heirs  for 
the  life  of  B.,  the  words,  "for  the  life  of  B." 

form  the  general  limitation.     "^Tlie  words,  "  and  his  heirs," 

(6)  Co.  Litt.234  b;  236  b.     Shep.T.  121. 
(c)  Shep.  T.  117. 


Vol.  II.— 2 


[  11  J         I.  2.]  AN  ORIGINAL  VIEW  [§33—36. 

are  not  words  of  limitation,  in  this  case ;  but  point  out  the 
persoiis,  who,  according  to  the  common  opinion,  were  to 
lake  as  special  occupants,  during  the  residue  of  B.'s  life, 
after  the  death  oft.-^.  Where  the  words,  "his  heirs,"  are 
words  of  limitation,  they  denote  a  fee  ;  whereas,  it  is  allowed 
[   12  ]  on  all  hands,  that  tlie  grant  in  question  does  not  create  a  fee 

of  any  kind.(f/) 
Instances  of       Where  land  is  devised  to  t/?.  for  ever,  the  general  33 

implied  go-     limitation,  "  and  his  heirs,"  is  implied.     So,  where 
neral  limit-     land  was  devised  to  ./?.  indefinitely,  before  the  year  1838, 
ations.  the  general  limitation,  "  for  life,"  was  implied  by  construc- 

tion of  law.  And  now,  by  the  stat.  1  Vict.  c.  26,  where  land 
is  devised  in  that  manner,  by  a  will  made  since  the  begin- 
ning of  the  year  183S,  the  general  limitation,  "and  his 
heirs,"  is  implied:  for  by  that  statute,  such  a  devise  will 
pass  the  fee. 
Definition  of       A  special  limitation  is  a  qualification  serving  to  34 

a  special  or    mark  out  the  bounds  of  an  estate,  so  as  to  '^deter- 
collateral   Ji-  mine  it,  ipso  facto,  in  a  given  event,  without  action,  entry, 
mitation.        or  claim,  before   it   would  or  might  otherwise   expire  by 
See  §  12, 16- force  of  or  according  to  the  general  limitation. (e)     This  is 
19,148-9.     '"sometimes   denoted   by  the  expression,   "a   determinable 

quality."(/) 
Examples  of      Thus,  where  land  is  limited  to  ^.  for  99  years,  35 

special  limit- s if  he  shall  so  long  live,(^)  the  words,  "for  99 
ations.  years,"  form  the  general  limitation,  denoting  that  the  inter- 

est is  a  chattel  interest  for  99  years  ;  and  the  words,  "  if  he 
shall  so  long  live,"  constitute  a  special  limitation,  which 
would  determine  his  estate  on  his  death.  This  estate,  there- 
fore, is  of  precisely  the  same  eventual  duration  as  an  estate 
limited  to  ./?.  for  life,  in  consequence  of  the  addition  of  the 
special  limitation.  But  the  difference  in  the  general  limita- 
tion in  the  two  cases,  creates  the  important  distinction  be- 
tween them,  that  the  one  is  but  a  chattel  interest,  whereas 
the  other  is  a  freehold.  Again,  where  land  is  granted  to  «/?. 
••till  &c.,  or  so  long  &c.,  or  if  &c.,  or  whilst  &c.,  or  during, 
&:c.,(/i)  the  estates  so  limited  have  two  limitations:  for,  the 
law  gives  a  life  estate  to  »/^.  implying  the  words  "for  life," 
so  as  to  constitute  an  implied  general  limitation,  while 
the  words  till  &c.,  form  an  additional  and  special  limita- 
tion. 
[  13  ]  These  special  limitations  are  sometimes  termed  36 

Remarks  on  collateral  limitations.     And  if  the  term,  "  collateral 

(d)  See  Bl.  Com.  259,  260.     Fearne,  496—500. 

(e)  Sec  Co.  Litt.  214  a ;  234  b ;  235  a.     Prest.  Shop.  T.  139,  146. 
If)  Fearne,  10,  note  (h). 

(^)  Sec  Co.  Litt.  214  b.     Shep.  T.  125,  151. 

(A)  See  Co.  Litt.  214  b;  234  bj  235  a.     Shep.  T.  125,  151,  140. 


I.  2.]  OF  EXECUTORY  INTERESTS.    [§37—39.         [  13  ] 

limitation,"  is  used  as  referring  to  an  event  which  is  collat-  the  term 
eral  to  the  general  Hmitation,  it  is  not  incorrect.     But  'if  the  "  coUatoral" 
term   is  used   from  a  notion  that  these  hmitations  form  no  applied  to 
part  of,  and  are   independent  of,  and  collateral  to,  the  origi-  spicial  limit- 
nal  measure  of  the  estate,  in  the  same  manner  as  a  condi-  "tions. 
tional  limitation,  or  a  condition  subsequent  properly  so  call-  See  §  14S-9, 
ed,  such  a  notion  is  inaccurate, (i)  and  the  inaccuracy  is  one  12,  16--19. 
of  a  fundamental  and  most  important  character.    For  it  must 
be  observed,  that  where  an  estate  has  a  special  limitation  as 
well  as  a  general   limitation,  it  has  but  one  original  and 
eventual  measure  of  duration  depending  on  two  limitations, 
and  capable  of  expiring   by  force   either  of  the  one  or  the 
other  of  them,  which  shall  hrst  happen,  on  the  occurrence  of 
the  event  which  constitutes  the  bound  or  limit.    Thus,  in  the 
above-mentioned  case  of  an  estate  limited  to  ^d.  for  99  years, 
if  he  shall  so  long  live  ;  there  is  but  one  original  and  eventual 
measure  of  ..^.'s    interest,  depending   on   the  effluxion  of 
the  99  years,  or  the  dropping  of  his  life,  which  shall  first 
happen.'    The  fact  that  these  special  limitations  are  not  col- 
lateral to  the  original  measure  given  to  the  estates  to  which 
they  are  annexed,  constitutes  the  fundamental  distinction 
between  them  and  conditional  limitations  specifically  and  See  §  148-9, 
properly  so  called,  as  will  appear  in  subsequent  parts  of  the  262-275. 
present  Essay. 

37  Special  limitations,  according  to  the  foregoing 
division,  are  either  regular  or  irregular. 

38  A  REGULAR  limitation  is  a  restriction  which  does  Definition  of 
not  begin  with  the  words,  "on  condition,"  "provi-  a  regular spe- 

ded,"  or  "so  that,"  and  which,  by  forming  a  part  of  a  sen-  cial  limiia- 
tence  whereby  an  estate  is  created,  serves  to  mark  out  the  tion. 

original  limits  of  such  estates;  as  •'where  an  estate  gee  §  16. 

39  is  granted  to  B.  and  his  heirs  till  he  be  promoted 

to  a  benefice. (A-)     An  irregular  limitation  is  a — ofanirre- 
proviso  annexed  to  an  estate  capable  of  supporting  a  re-  gular  special 
mainder,  and  beginning   with  the  words,  "  on  condition,"  limitation, 
"provided,"  or  "so  that,"  but  followed  by  a  distinct  sen-  [  14  ] 

tence  creating  a  remainder  over  in  favour  of  another  person,  See  §  16. 
and,  for  that  reason,  construed  as  if  forming  a  part  of  the  See  §  159. 
sentence  whereby  the  preceding  estate  is  created,  so  as  to 
mark  out  the  original  limits  thereof.  Thus,  '  if  a  devise  be 
to  .?.  for  life,  on  condition  that  he  do  not  marry  C,  with  re- 
mainder to  B.\  this  is  construed  as  if  it  were  to  ,1.,  until  he 
shall  marry  C.\  and  then,  or  upon  death,  to  B.{1)  The  pro- 
viso, "on  condition"  that  he  do  not  marry  C,  is  cotistrued 

(j)    See  Fcarne,  10,  note  (//). 
(A-)  Shep.  T.  125.     See  also  Sliep.  T.  151, 

(/)  Burton's  Compendium,  §  S29.     See  also  Scattcncood  v.  Edge,  as  staled, 
Fearne,  237  :  and  Page  v.  Hai/icard,  2  Salk.  570,  as  stated,  Fearne,  424. 


[  14  ]  I.  2.]  AN  ORIGINAL  VIEW  [§40—43. 

as  if  it  formed  a  part  of  the  sentenco  devising  the  estate  to 
A.  for  life,  and  constituted  an  additional  limit  to  the  rnea- 
See§12, 16-  sure  originally  given  to  that  estate,  instead  of  being  deemed 
19^  to  operate  as  a  proper  condition  subsequent,  so  as  to  defeat 

such  estate  in  favour  of  the  heir  of  the  testator,  or  as  a  condi- 
See  §  148-9.  tional  limitation,  so  as  to  defeat  such  estate  in  favour  of  B., 
before  it  had  filled  np  the  measure  of  duration  given  to  it  by 
the  terms  of  the  clause  by  which  it  was  created. 
Qualification      It  may  here  be  observed  that  cases  have  arisen  40 

of  a  regular  ™  where  a  regular  limitation  has  been  qualified  by 
limitation.      the  subsequent  words,  so  as  to  prolong  the  duration  of  the 
estate  beyond  the  period  when  it  would  expire  simply  by 
force  of  the  regular  limUation.(?/z) 

Regular  limitations  are  ehher  direct  or  indirect. 
Definition  of     A  direct  limitation  is  a  restriction  couched  in  41 

a  direct  regu-  words  which  directly  express  a  limit  to  the  quan- 
lar  limita-  tity  of  the  interest  created;  as,  to  Ji.  during  &c., 
tion.  or'till  &c..  or  whilst  &c,,  or  so  long  &c.     An  indi-  42 

ofanindi- RECT  limitation  is  a  restriction    put   in   a   condi- 

rect  regular    tional   form,  or  in   words  which  only  im])ly  a  limit  to  the 
limitation.      quantity  of  the  interest  created;  (as,  where  land  is  given  to 
Jl.  for  99  years,  if  Ji.  shall  so  long  live,  or  if  A.  continue 
&c.)  or,  by  words  of  description  which  attach  a  certain  cha- 
[  15  ]  racter  or  qualification  to  the  objects  of  the  grant  or  devise, 

so  as  to  qualify  the  generality  thereof,  and  indirectly  to  limit 
the  duration  of  the  estate  to  such  a  time  as  they  shall  con- 
tinue to  sustain  that  character ;  as,  where  land  is  granted  to 
A.  and  his  heirs,  lords  of  the  Manor  of  Dale.  And  "  where 
an  estate  is  limited  to  the  use  of  B.  and  his  heirs,  he  and 
they  taking  &c.,  and  continuing  to  take,  &c.  the  name  and 
arms  of  A.\  this  is  an  indirect  limitation,  so  that  the  estate 
can  endure  no  longer  than  B.  and  his  heirs  comply  with  the 
condition. "(n) 
Samecontin-      It  may  here  be  observed,  that  the  same  contin-  43 

gency  may    gency  may  form  both  a  special  limitation,  as  to  a 
be  both  a       preceding  interest,  and  also  a  condition  precedent,  as  to  a 
special  limi-    subsequent  interest  limited  so  as  to  depend  entirely  upon  it, 
taiion,  and  a  ^g  ^  contingent  remainder, 
condition 
precedent. 

{m)  See  Doe  d.  Dean  and  Ch.  of  Westminster  v.  Freeman  and  Wife,  1  D. 
&  E.  339,  as  staled,  Fearnc,  240. 
(n)  See  Litt.  597,  (2)  11.  3. 


I.  3.  i.]         OF  EXECUTORY  INTERESTS.    [§11— 4S.  [  IG  ] 


CHAPTER  THE  THIRD. 

THE     DIFFKKENT     KINDS    OF     INJ'F.UESTS     ANALYTICALLY    AR- 
RANGED,   DEFINED,    AND    DISTINGUISHED. 


SECTION  THE  FIRST. 

JntroJuctory  Definitions  and  Observations. 

Definition  of 

44  I.  An  interest  in  any  subject  of  property,  in  the  jjj^jj^jg,.ggt^ijj 

widest  or  popular  generic  sense  of  the  word  inte-  tj^g  widest 
rest,  (See  §  65,  S-4.)  is  that  coiniexion  which  subsists  between  sense  of  the 
a  person  and  such  subject  of  property.  term. 

45  II.  A  right  or  interest,  in  this  sense  of  the  term,  Rjrrhis  or  in- 
in  real  hereditaments,  may  either  be  altogether  im-  terests  cither 

perfect,  or  it  may  be  perfect  at  law,  or  perfect  in  equity,  or  perfect  or 
perfect  both  at  law  and  in  equity.  It  may  be  so  perfect,  imperfect, 
that  nothing  could  render  the  hereditament  which  is  the  sub-  ^  perfect 
ject  of  the  right  or  interest,  or  at  least  our  part  or  share  there-  interest 
of,  more  completely  our  own,  at  law,  or  in  equity,  or  both  described, 
at  law  and  in  equity,  as  the  case  may  be,  for  the  time  such 
interest  endures. 

46  III.  This  perfect  interest  is  the  interest  denoted  Definition  of 
by  the  word  property  or  ownership,  which  may  property  or 

be  defined  to  be,  tliat  exclusive  right,  at  law,  or  in  equity,  ownership. 
or  both  at  law  and  in  equity,  which  the  jurisprudence  of  the 
country  creates,  in  favour  of  a  particular  person,  in  regard 
to  a  given  thing. 

47  IV.  This  too   is  denoted  by  the  word   seisin.  Definition  of 
which  specifically  signifies  that  perfect  legal  inte-  seisin. 

rest,  ownership,  or  property,  of  which  real  hereditaments 
are  susceptible  ;  or,  that  kind  of  possession  which  is  incident 
to,  and  necessarily  included  in,  and  cannot  exist  apart  from, 
legal  ownership  or  property,  as  resulting  from  that  exclusive 
right  which  the  law  creates  in  favour  of  a  particular  person, 
in  regard  to  real  hereditaments. 

48  V.  And   a  person  who  is  invested   or  clothed  [  17  ] 
(vestitus)  with  this  perfect  interest,  ownership,  or  When  a  per- 

property,  or  has  tins  kind  of  possession,  is  said  to  have  a  son  is  said  to 

VESTED  interest,  or  a  present  or  actual  estate  in  the  land:  haveavcsted 

and  if  the  ownership  of  the  land  is  a  legal  and  not  merely  interest  or 

an  equitable  ownership,  lie  is  said  to  be  seised  of  the  land,  actual  estate, 

Whereas  a  person  who  has  only  an  imperfect  interest  exist-  ^""^  ^^  "® 
^  ''  seised. 


[  17  ]  I.  3.  i.]  AN   ORIGINAL  VIEW  [§49—51. 

When  he  is  i'^a  collaterally  to  this  perfect  interest,  is  not  said  to  have  a 
not  said  to     vested  interest,  or  a  present  or  actual  estate. in  the  land,  but 
have  a  vested  has  only  an  executory  interest;  or  an  interest  for  a  terra 
interest,  or     of  years  conferring  the  possession  for  a  Hniited  period,  with 
to  be  seised,  or  without  the  beneficial  interest  during  that  period;   or  a 
quasi  interest ;  or  a  mere  precarious  possession  ;  or  a  power 
of  appointment,  a  charge,  or  a  lien  ;  the  nature  of  which 
will  be  explained  in  the  next  section. 
Different  VI.  Possession  may  be  either  "personal,  or  by  49 

modes  of  substitute,  as  by  one's  termor  for  years,  whose  in- 
possession.  lerest,  though  not  connected  in  title  with  our  own,  is  not 
inconsistent  with  it.  Or,  it  may  be  either  actual,  where  the 
land  is  occupied  by  one's  self  or  one's  bailifF;  or  virtual, 
where  it  is  occupied  by  a  tenant  for  years,  or  by  a  termor 
for  years  whose  title  is  consistent  with  our  own.  Or,  it  may 
be  either  executed,  as  where  the  land  is  occupied  by  one's 
self,  or  one's  bailiff;  or  executory,  as  in  the  case  of  a  remain- 
der-man or  reversioner,  during  the  continuance  of  the  par- 
ticular estate  of  freehold,  or  of  the  heir  (before  entry)  of  a 
person  who  died  actually  seised. (a) 
Three  kinds       VII.  Real  hereditaments  are  susceptible  of  three  50 

of  interests  kinds  of  interests,  in  the  widest  sense  of  the  term, 
commensu-  which  are  commensurate  with  the  duration  of  such  heredita- 
rate  with  ments:  first,  the  legal  seisin,  property,  or  ownership;  second- 
duration  of  jy^  ^i-jg  equitable  or  beneficial  interest,  property,  or  owner- 
real  here-  ship;  thirdly,  the  mere  possession,  rightful  and  unlimited, 
ditaments ;  ^^^^  ^j^^  ^^^^^^  person  may  have  either  the  legal  seisin,  or  the 
VIZ.  legal  equitable  interest  alone  ;  or  he  may  have  any  two  of  these 
°Tit^uWe^'  ^^^^^'^  ^'"^^  of  interests;  or  he  may  have  all  the  three.  And 
owne'rsliip  consequently  the  mere  possession  and  the  equitable  in- 
and  mere '  Merest  may  cither  be  conjoined  with,  or  may  exist  apart 
r  18  ]  from  and  collaterally  to,  the  legal  seisin,  property,  or  owner- 

possession,     ship. 
These  may  be  either  united  or  disunited. 

Other  inter-       VIII.   Besides  these  three  interests,  there  are  51 

ests  which  others  which  are  not  co-extensive  with  the  dura- 
are  not  com-  tion  of  real  hereditaments,  and  are  of  an  imperfect  character, 
mensurate  and  essentially  and  not  merely  accidentally  and  occasionally 
with  the  apart  from  and  collateral  to  the  legal  seisin,  property,  or 
duration  of  ownership.  Of  this  nature  are  executory  interests,  which 
real  hcrcdi-  ^^^jy  comprise  a  part  or  the  whole  of  the  property  or  owner- 
taments,  and  ^^j^  posterior  to  the  event  or  period  on  which  they  are  to 
are  always  ^^^^^  And  such  are  the  other  imperfect  interests  enumer- 
coUateral  to  ^  above,  and  defined  in  the  next  section, 
the  legal  ' 

ownership.  See  §  48. 

(a)  With  reference  to  these  different  kinds  of  possessions,  compare  2  Bl.  Com. 
144,  209,  with  Burton's  Compendium,  §  302 — 304. 


I.  3.  i.]         OF  EXECUTORY  INTERESTS.  [§  52—55.  [   IS  ] 

52  IX.  The  legal  seisin,  property,  or  ownership,  Legalowner- 
bcini?  of  niilimilcd  duration,  that  duration  is  capa-  ship  divisible 

blc  of  being  divided  into  an  indefinite  number  of  constituent  into  consti- 
periods  of  the  measure  of  freehold,  by  means  of  the  general  tuent  pc- 
aud  special  limitations  which  form  the  subject  of  the  pre-  '■'°"^^'' , 
ceding  chapter;  and  there  may  be  an  indefitiite  number  of  "'^^'■''^^'^''^'^1^ 
owners,  answering  to  the  several  periods,  having  interests  in  ^'  'cr  among 
remainder  or  succession  one  after  another.     And  the  entire  ^^^^^^^.g 
legal  seisin,  property,  or  ownership  in  fee,  or  the  legal  seisin,  ^^  jjinonT 
property,  or  ownership  for  any  such  constituent  period,  is  contempora- 
also  capable  of  being  divided  among  or  given  to  an  indcfi-  ^^^^^^ 
nite  number  of  persons,  as  contemporaneous  tenants,  by  owners, 
way  of  coparcenary,  joint-tenancy,  or  tenancy  in  common, 

or  by  way  of  a  tenancy  by  entireties.     And,  whe-  each  of 

53  ther  the  individuals  are  to  enjoy  the  land  succes-  whom  has  a 
sively,  as  in  the  first  case,  or  simultaneously,  as  in  part  of  the 

the  second,  the  interests  of  the  several  persons  are  integral  seisin,  and  a 
parts  of  one  and  the  same  entire  legal  seisin,  property,  or  vested  inter- 
ownership,  and  are  all  equally  entitled  to  the  denomination  est  or  actual 
of  vested  interests  or  actual  estates.  estate. 

54  X.  But  the  legal  seisin,  property,  or  ownership,  But  it  cannot 
whether  in  fee  or  otherwise,  catmot  reside  in  two  reside  in  two 

different   individuals,  without   privity  of  estate:   in  other  ditFerent  per- 
words,  the  same  hereditament  cannot  be  the  subject  of  two  sons  without 
interests,  each  relating  to  the  same  period,  and  each  com-  privity  ot 
prising  the  entire  legal  seisin,  property,  or  ownership  for  that  estate, 
period.    There  can  be  but  one  legal  seisin,  property,  or  own- 
ership, whether  occupying,  as  it  were,  the  whole  period  of 
the  duration  of  real  hereditaments,  or  only  a  given  part 
thereof;   though  that,  as   we   have  seen,  may  indeed  be 
divided  into  several  contemporaneous  shares,  or  several  sue-  [   19  ] 

cessive  parts.  When  once  it  has  attached  in  any  person, 
another  person  who  is  not  privy  in  estate,  as  coparcener, 
joint- tenant,  tenant  in  common,  or  tenant  by  entirety,  can 
have,  during  the  same  period,  only  the  equitable  or  bene- 
ficial interest,  property,  or  ownership,  with  or  without  the 
possession  ;  or  nothing  but  a  right  or  interest  of  an  imper- 
fect character  and  merely  collateral  to  the  legal  seisin,  pro- 
perty, or  ownership;  whether  it  be  an  executory  interest ; 
or  an  interest  for  a  term  of  years,  conferring  the  possession 
for  a  limited  period,  witii  or  without  the  beneficial  interest 
for  that  period ;  or  a  (/laisi  interest ;  or  a  mere  precarious 
possession ;  or  a  power  of  appointment,  a  charge,  or  a 
lien. 

55  Thus,  if  land  is  limited  to  the  use  of  c^.,  for  life  ;  Illustration 
remainder  to  the  use  of  J5.,  in  tail ;  remainder  to  of  the  two 

the  use  of  C,  I).,  and  E.,  as  tenants  in  common  in  fee;  in  preceding 
this  case,  .i.  has  one  part  of  the  legal  seisin,  properly,  or  observations, 
ownership;  Z?.,  another;  and  C,  Z>.,  and  ii.,the  remaijiing 


[   19  ]  I.  3.1.]  AN  ORIGINAL  VIEW  [§56—60. 

part.  And  these  three  successive  estates  being  commensu- 
rate with  the  duration  of  the  land  itseU",  and  filUng  up  the 
whole  measure  of  the  legal  seisin,  property,  or  ownership 
which  may  be  had  therein;  every  other  interest  in  tlie  land 
must  be  only  the  equitable  or  beneficial  interest,  property, 
or  ownership,  with  or  without  the  possession ;  or  nothing 
but  an  imperfect  right  or  interest  merely  collateral  to  the 
legal  seisin,  property,  or  ownership. 
The  equi-  XI.  In  a  similar  way,  the  mere  equitable  or  be-  56 

table  owner-  neficial  interest  or  ownership,  and  the  mere  right- 
ship  and  the  ful  unlimited  possession,  being  co-extensive  with  the  dura- 
possession      tion  of  the  hereditaments  themselves,  and  therefore  of  unli- 
areofsimilar  j^^iited  duration,  may  be  divided  into  an  indefinite  number  of 
durauon.        constituent  periods  or  portions. 

Equitable  XII.  But  the  equitable  or  beneficial  interest,  pro-  57 

ownership  perty,  or  ownership,  like  the  legal  seisin,  property, 
cannot  reside  or  ownership,  cannot  reside  in  two  ditferent  individuals  with- 
in two  dif-  out  privity  or  estate.  When  once  it  has  attached  in  any 
ferent  per-  person,  another  person  who  is  not  privy  in  estate,  as  co-par- 
sons without  cener,  joint-tenant,  tenant  in  common,  or  tenant  by  entirety, 
privity  of  (3^^  have,  during  the  same  period  which  it  occupies  or  to 
estate.  which  it  relates,  the  mere  legal  seisin,  property,  or  owner- 

[  20  ]  ship,  with  or  without  the  possession,  or  nothing  but  an  im- 

perfect right  or  interest  merely  collateral  to  the  legal  and 
equitable  ownership  or  property,  such  as  those  enumerated 
above,  and  defined  in  the  next  section. 
Into  what  XIII.  The  seisin,  property,  or  ownership  of  or  58 

portions  in  lands  or  tenements  can  only  be  divided  into 
seisin,  pro-  periods  or  portions  of  the  measure  of  freehold;  that  is,  into 
pcrty,  or  estates  for  life,  and  estates  of  inheritance.  Any  periods  or 
ownership  is  portions  of  interest  which  are  less  than  these  in  the  eye  of 
divisible.  the  law,  do  not  constitute  portions  of  the  seisin,  property, 
or  ownership,  but  merely  confer  a  right  to  the  temporary 
possession  or  enjoyment,  or  both. 

But  the  property  or  ownership  of  or  in  personal  estate  may 
be  divided  into  any  kind  of  periods  or  portions. 
Legalowncr-       XIV.  As  the  legal  seisin,  property,  or  owner-  59 

ship  or  free-  ship,  or,  in  other  words,  the  legal  freehold  and  iii- 
hold  and        heritance,  is  commensurate  with  the  duration  of  real  heredi- 
inhcritance     taments,  it  must  be  in  existence  at  all  times,  either  in  some 
cannot  be       particular  person  and  persons,  or  at  least  in  contemplation 
in  abeyance,  ^f  j^^_     But,  in  fact,  it  cannot  be  in  existence  merely  in 
contemplation  of  law:  it  can  never  be  in  abeyance,  but  must 
reside  in  some  person,  in  order  that  there  may  always  be 
some  one  in  esse,  against  whom  an  action  may  be  brought 
Conse-  for  the  recovery  of  the  land.     And  therefore,  if  a 

quences  of     person  limits  a  freehold  interest  in  the  land,  by  60 

this  doctrine,  xvay  of  use  or  devise,  which  he  may  do,  though  he 
kJee  §  117      could  not  do  so  at  the  common  law,  to  commence  infuturo. 


I.  3.  ii.]        OF  EXECUTORY  INTERESTS.    [§fii— fit.  [20] 

•'without  making  any  disposition  of  tlic  intermediate  legal 
seisin,  property,  or  ownership, (/y)  or  a  disposition  of  it  which 
does  not  exhaust  the  whole  of  such  intermediate  legal  sei- 
sin, property,  or  ownership;  "^ihe  legal  seisin,  property,  or 
ownership,  except  such  part  thereof,  if  any,  as  is  comprised 
within  a  prior  disposition  of  a  vested  interest,  of  course  re- 
mains in  the  grantor  and  his  heirs,  or  the  heir  at  law  of  the 
testator,  until  the  arrival  of  the  period  when,  according  to 
the  terms  of  the  future  limitation,  it  is  appointed  to  reside  iti 
the  person  to  whom  such  interest  infuliiro'\s  limit- 

61  ed.(c)    And  ''if  a  person  limits  the  inheritance,  whe- 
ther at  common  law  or  by  way  of  use  or  devise,  [  21   ] 

to  arise  on  a  contingency,  by  way  of  remainder  immediately 
after  the  regular  expiration  of  prior  estates,  of  course  the  in- 
heritance, until  the  happening  of  the  contingency,  remains 
in  the  grantor  and  his  heirs,  or  the  heir  of  the  tes- 

62  tator.(Gf)     And  hence,  in  each  of  these  cases,  dur- 
ing the  intervening  period,  no  other  person  but  the 

grantor  and  his  heirs,  or  the  heirs  of  the  testator,  can  have  See  §  54. 
any  thing  more  than  a  mere  right  or  interest,  existing  col- 
laterally to  the  legal  seisin,  property,  or  ownership,  though 
capable  of  attracting  and  becoming  converted  into  the  legal 
seisin,  property,  or  ownersliip,  in  the  event  or  at  the  tune 
specified. 

Passing  from  these  general  introductory  observations,  an 
attempt  will  now  be  made  to  distribute  the  various  interests 
in  property,  into  classes,  and  accurately,  and  as  concisely  as 
consistent  with  real  utility,  to  define  and  distinguish  them. 


SECTION  THE  SECOND. 

The  different  classes  of  Interests,  in  the  widest  sense  of  the 
term,  defined,  and  distinguished. 

63  We  have  seen  that  an  interest  in  any  subject  of  pgf^j^jtJQn  of 
property,  in  the  widest  or  popular  generic  sense  of  an  Interest, 

the  word,  is  that  connexion  which  subsists  between  a  person  in  the  widest 
and  such  subject  of  property.     (See  §  44,  G5,  84.)  sense  of  the 

64  The  various  interests  in  the  widest  sense  of  the  term, 
term,  which  may  he  had  in  lands  or  tenements,  and  Division  of 

which  are  coimected  with  the  science  of  conveyancing,  may  interests,  in 
be  divided  into —  the  widest 

(b)  Sir  Edward  Clere''s  Case,  6  Co.  Rep.  17  b,  as  stated,  Fearne,  351. 

(c)  See  Fearne,  1,  note  (a). 

{d)  Davies  v.  Speed,  Garth.  262  ;  Phniket  v.  Ilobnes,  Rayni.  2S  ;  Purefoy 
V.  Rogers,  2  Sand.  380;  Carter  v.  Barnadiston,  2  Bro.  Cas.  Purl.  1;  and  Lod- 
dington  v.  Kime,  1  Salk.  224 ;  as  cited  Fearne,  353 — 356.  And  Fearne,360 — 364. 

Vol.  II.— 3 


sense  of  the 

I. 

term,in  lands 

11. 

[  22] 

III. 

ortenements. 

IV. 

V. 

VI. 

[  21  ]  I.  3.  ii.]  AN  ORIGINAL  VIEW  [§65—69. 

Legal  interests  of  the  measure  of  freehold. 
Legal  interests  for  a  term  of  years. 
Equitable  interests  of  the  measure  of  freehold. 
Equitable  interests  for  a  term  of  years. 
Quasi  interests. 
Mere  precarious  possessions. 
VII.  Expectancies. 
VIII.  Powers  of  appointment. 
IX.  Charges. 
X.  Liens. 
Definition  of     L  A  legal  interest  of  the  measure  of  freehold  is  Q5 

a  legal  free-  aright  constituting  the  object  of  a  limitation  vvhere- 
hold  interest,  by  a  grant  or  devise  is  made,  and  extending  to  the  legal 
See  §63,  84.  seisin,  property,  or  ownership  of  the  land.     Interests  of  this 
kind  are  said  to  be  legal  estates  or  interests  in  the  land,  in 
the  technical  generic  sense  of  the  phrase. 
Definition  of      II.  A  legal  interest  for  a  term  of  years  is  a  right  66 

a  legal  inter-  constituting  the  object  of  a  limitation,  and  extend- 
estfbraterm  ing  only  to  the  actual  possession,  either  with  or  without  the 
of  years.        beneficial  enjoyment,  for  a  certain  number  of  years. 
Definition  of      I^I-  An  equitable  interest  is  a  right  constituting  67 

an  equitable  the  object  of  a  limitation,  and  extending  merely  to 
freehold  in-    the  beneficial  enjoyment  for  a  period  of  the  measure  of  free- 
terest.  hold,  in  contradistinction  as  well  to  the  legal  seisin,  property, 

See  §63,65,  or  ownership,  as  to  the  actual  possession.     Interests  of  this 
84.  kind  are  said  to  be  equitable  estates  or  interests  in  the  land, 

in  the  technical  generic  sense  of  the  phrase. 
Definition  of     IV.  An  equitable  interest  for  a  term  of  years  is  68 

an  equitable  a  right  constituting  the  object  of  a  limitation,  and 
interest  for  a  extending  merely  to  the  beneficial  enjoyment  for  a  certain 
term ofyears.  number  of  years. 

Definition  of      ^-  What,  for  the  sake  of  convenience,  is  above  69 

a  quasi  m-     termed  a  quasi  interest,  is  a  power  or  possibility 

terest.  of  gaining  the  property  or  ownership  of  the  land,  which, 

though  not  constituting  the  object  of  a  limitation,  is  yet 

founded  in  an  actual  provision,  or  on  a  lost  but  recoverable 

seisin. 

Of  this  nature  arc — 
The  difl'erent      1.  Present  rights  of  entry  or  action  for  conditions  broken, 
species  of      and  present  rights  of  action  for  the  recovery  of  an  estate, 
quasi  inte-  2.  Mere  possibilities,  in  the  technical  and  specific  sense, 

rests.  such  as — 

[  23  ]  {^)  -^  ^possibility  of  reverter  on  a  grant  of  a  quali- 

fied or  determinable  {GQ.{a) 
(2)  A  ''possibility  of  reverter  on  a  grant  of  an  estate 


(o)  See  Fearne,  381,  note  (o),  1. 


I.  3.  ii.]        OF  EXECUTORY  INTERESTS.    [§70— 7 1.  [  23  ] 

for  life  in  a  term,  where  there  is  no  hniitatioii 
over.(^) 
(3)  A  •^contingent  right  of  entry,  in  case  there  should 
be  a  breach  of  a  condition  snbsequenl(c);  or  a 
''fnture  right  of  a  wife  to  enter  after  her  husband's 
death.(^/) 

70  VI.  The  nature  of  a  mere  precarious  possession  is  Merc  preca- 
sufficiently  obvious  from  the  term  itself.     Such  a  rious  pos- 

possession  may  exist —  sessions. 

1.  With  the  right  of  possession  ; 

(1)  With  consent  of  the  proprietor,  as  in  tenancies  at 

will. 

(2)  '"Adverse,  as  in  the  case  of  a  disseisor,  whore  the 

disseisee's  right  of  possession  is  taken  away. (e) 

2.  Without  the  right  of  possession  ; 

(1)  With  consent  of  the  proprietor,  as  in  the  case  of 

tenancy  by  sufferance. 

(2)  'Adverse,  as  in  the  case  of  a  disseisor,  where 

the  disseisee's  right  of  possession  is  not  taken 
away.(e) 

71  VII.  An  expectancy  or  chance  is  a  mere  hope.  Definition  of 
unfounded  in  any  limitation,  provision,  trust,  or  an  expcct- 

legal  act  whatever;  such  as  '"the  hope  which  an  heir  appa-  ancy. 
rent  has  of  succeeding  to  the  ancestor's  estate.(/)  This  is 
sometimes  said  to  be  a  ebare  or  mere  possibility ,(,£,'•)  and,  ''at 
other  times,  less  than  a  possibility. (A)  It  is  a  possibility  in 
tlie  popular  sense  of  the  term.  But  it  is  less  than  a  possibi- 
lity in  the  specific  sense  of  the  term  possibility.  For,  it  is  [  24  ] 
no  right  at  all,  in  contemplation  of  law,  even  by  possibility; 
because,  in  the  case  of  a  mere  expectancy,  nothing  has  been 
done  to  create  an  obligation  in  any  event;  and  'where  there 
is  no  obligation,  there  can  be  no  right;  for  right  and  obliga- 
tion are  correlative  terms.(^) 

72  VIII.  Powers  of  appointment  of  real  property  Definition  of 
are  powers  of  creating  an  interest  in  the   same  by  ''i  power  of 
appointing  it  to  certain  uses.  appoint- 

73  IX.  Charges  on  real  estate  are  sums  of  money  "^^"^v  . 
payable  out  of  the  same.  Deiinitix>n  of 

74  X.  A  hen  is  a  hold  upon  property,  for  the  satis-  ^^]^^9^'  ^ 
r  ■  f  ,  •  ..  I  •  .1  .  1  ^r  Definition  of 
faction  oi  a  clann  attachnig  tlierelo,  under  an  ex-     ,. 

^  '  a  lien. 

(b)  Fearne,  488. 

(c)  See  Fearne,  381,  note  (a),  1. 
{d)  Fearne,  ^89. 

(e)  Sec  Fearne,  286,  note  (e).     2  Bl.  Com.  c.  13.     Burton's  Conipendium,  I.  6. 

{f)  Carleton  v.  Lcighton,  3  iMeiiv.  071. 

(^'■)  Fearne,  '570-1. 

(A)  Fearne,  551. 

(i)  Paley's  Moral  and  Folil.  Phil.  B.  II.  c.  x. 


[  24  ]  I.  3.  iii.] 


AN  ORIGINAL  VIEW 


[§74-75. 


press  charge  or  contract,  or  a  constructive  trust.     Thus, 
•^judgments,  statutes,  and  recognizances  do  not  create  any- 
right  in  the  land,  but  only  a  lien  on  the  land,  which  may  or 
niay  not  be  enforced  upon  \{.{k) 
Interests,  in        In  regard  to  personal  property,  it  will  be  sufli-  74a 

the  widest      cient  generally  to  observe,  that  subject  to  the  well- 
senseofthe    known  distinctions  between  real  and  personal  estate,  the 
term,  in  per-  various   interests  which  may  be  had  in  personal  property 
sonal  pro-      are  susceptible  ofa  similar  division,  and  of  similar  definitions, 
perty 

SECTION  THE  THIRD. 

The  different  kinds  of  Interes/s  of  the  measure  of  Free- 
hold in  Lands  and  Tenements,  and  Interests  in  Chat- 
tels, analytically  arranged,  defined,  and  distingidshed. 


I.  Division 
of  freehold 
interests 
with  refer- 
ence to  the 
existence 
&c.  of  the 
seisin,  pro- 
[  25   ] 
perty,  or 
ownership. 


I.   Interests  of  freehold  duration  in  lands  and  75 

tenements,  and  interests  in  chattels,  when  consider- 
ed with  regard  to  their  existence  or  non-existence,  or  acqui- 
sition or  non-acquisition,  and  the  certainty  or  uncertainty, 
of  the  seisin,  property,  or  ownership,  and  the  presence  or  ex- 
pectation of  the  possession  or  enjoyment,  and  the  circum- 
stances in  which  such  expectation  is  founded,  may  be  "di- 
vided(«)  into — 

I.  Vested  interests,  or  actual  estates. 

1.  Present  vested  interests. 

(1)  Vested  in  possession,  or  enjoyment,  or  in  both. 

(2)  Vested  in  interest  or  right. 

(a)  A  right  of  immediate  entry  to  regain  the 

possession. 

(b)  A  present  vested  interest  in  real  estate, 

subject  to  a  term  for  years. 

(c)  A  present  vested  interest,  subject  to  a  chat- 

tel interest  of  uncertain  duration. 

(d)  A  present  vested  interest,  subject  to  a  sus- 

pension of  the  possession,  or  enjoyment, 
or  both. 

2.  Future  vested  interests. 

(1)  Vested  remainders. 

(2)  Vested  quasi  remainders. 

(3)  Reversions. 

II.  Executory  interests,  or  interests  in  the  technical  specific 

sense,  as  contradistinguished  from  actual  estates. 
1.  Certain  executory  interests. 
(1)  Springing  interests; 


(A-)  Story's  Eq.  Jur.  §  416. 

(a)  On  this  point  see  Fearne,  1,  and  notc(«7). 


I.  3.  in.]    OF  EXECUTORY  INTERESTS.    [§75a— 7S.  [  25  ] 

(2)  Interests  under  augmentative  limitations. 

(3)  Interests  under  diminuent  limitations;  and 

(4)  Interests  under  conditional  limitations; — where 

such  interests  are  to  take  effect  on  an  event  or 
at  a  time  certain. 
2.  Contingent  executory  interests. 

(1)  Springing  interests; 

(2)  Interests  under  augmentative  limitations; 

(3)  Interests  under  diminuent  limitations; 

(4)  Interests  under  conditional  limitations; — where 

such  interests  are  to  take  effect  on  an  event  or 
at  a  time  certain. 

(5)  Alternative  interests. 

(6)  Interests  under  contingent  limitations  of  the 

whole,  or  the  immediate  part,  of  a  reversion. 

(7)  Contingent  remainders. 

(8)  Contingent  quasi  remainders. 

75a       Vested    and    executory    interests   may    be   defined  [  2G  ] 

either Two  modes 

1.  With  reference  to  the  right  of  actual  possession  of  defining 

or  enjoyment.  vested  and 

2.  Without  reference  to  the  right  of  actual  posses-  executory 

sion  or  enjoyment.  interests. 

76  1.  A  VESTED  INTEREST  or  an   actual  ''estate  i.  Definition 
properly  so  called,  {b)  if  defined  with  reference  to  of  vested  and 

the  right  of  possession  or  enjoy  77ient,\s\\\^i  kind  of  present  executory  in- 
right  of  present  or  future  possession  or  enjoyment,  terests,  with 

77  which  is  actually  clothed  with  the  seisin,  property,  reference  to 
or  ownership.    And  a  present  vested  interest  is  a  the  right  of 

right  of  present  possession  or  enjoyment,  or  both  ;  or,  a  pre-  possession  or 
sent  right  of  having  the  possession  or  enjoyment,  or  both,  at  enjoyment. 
a  future  time  to  which  there  is  mere  postponement  of  the  7— ol  a  vested 
possession  or  enjoyment,  or  both,  either  in  favour  of  a  prior  '"tercs^»  or 
chattel  interest  of  uncertain  duration,  or  in  tlie  absence  of  a  ^^^^^  ^'^^^  ^- 
prior  chattel  interest,  and  not  a  postponement  of  the  seisin,  .    '  , 

property,  or  ownership;  or,  in  the  case  of  real  estate,  a  pre-  j^^^j-ggt 
sent  right  of  having  the  possession  or  enjoyment,  or  both, 
whenever  there  may  be  a  vacancy  thereof  by  the  de- 

78  termination  of  a  preceding  term  for  years.   Where- 
as a  future  vested  interest  is  a  present  right  of — of  a  future 

having  the  possession  or  enjoyment  whenever  it  may  become  vested  iuter- 
vacant,  in  the  case  of  real  estate,  by  the  determination  of  a  est. 
preceding  freehold  estate,  or,  in  the  case  of  personal  estate, 
by  the  determination  of  a  preceding  chattel  interest. 

(h)  Sec  Fcarne,  1,  notes  (a)  and  (h).  It  is  very  common,  and  not  inaccurate, 
to  speak  of  an  executory  or  a  contingent  estate.  But  when  the  word  estate  is 
opposed,  as  it  frequently  is,  to  the  word  interest,  then  it  signifies  a  vested  and 
not  a  contingent  or  executory  interest. 


[  26  ]  I.  3.  iii.] 


AN   ORIGINAL  VIEW  [§7Sa— S4. 


Remarks  on        It  must  be  observed,  tbat  a  vested  interest  is  pre-  7Sa 

the  distinc-  sent  or  future,  solely  with  reference  to  the  seisin, 
tion  between  property,  or  ownership,  and  not  with  reference  to  the  pos- 
a  present  and  session  or  enjoyment,  or  both.  If  the  interest  comprises  the 
a  future  vest-  immediate  portion  of  the  seisin,  property,  or  ownership,  it  is 
ed  interest.  ^  present  vested  interest,  even  though  the  possession,  or  en- 
joyment, or  both,  be  postponed  to  a  future  time.  And  hence 
a  vested  interest,  in  real  estate,  which  is  limited  to  take  effect 
[  27  ]  after  the  regular  expiration  of  a  term  for  years,  is  a  present 

vested  interest ;  because,  inasmuch  as  a  term  for  years  does 
See  §  58.  not  extend  to  the  seisin,  property,  or  ownership,  of  lands  or 
tenements,  there  is  a  mere  postponement  of  the  possession, 
or  enjoyment,  or  both,  during  the  term,  and  not  a  postpone- 
ment of  the  seisin,  property,  or  ownership.  But  a  like  inte- 
rest in  personal  estate  is  a  future  vested  interest ;  because, 
when  an  interest  for  years  is  created  out  of  a  term  or  other 
personal  estate,  it  does  carry  a  part  of  the  property  or  own- 
ership in  such  term  or  other  personal  estate. 

When  the  right  is  a  right  of  present  possession,  79 

and  the  party  is  in  possession,  whether  personally 
or  by  substitute,  the  estate  is  said  to  be  vested  in  80 

POSSESSION.  When  it  is  a  present  right  of  having 
the  possession  whenever  it  may  become  vacant  by  the  de- 
termination of  a  preceding  chattel  interest,  or  whenever  it 
may  become  vacant  by  the  determination  of  a  preceding 
When  an  es-  freehold  estate,  or  at  some  other  future  time  to  which  only 
tate  is  vested  the  possession  is  postponed ;  in  each  of  these  cases, 
in  right  or      the  estate  is  said  to  be  vested  in  right  or  inter-  81 

interest.         est.     And  even  when  it  is  a  present  right  of  pre- 
sent possession,  if  such  right  has  been  attended  with  the 
possession,  but  ceases  to  be  so,  the  estate  can  only  be  said 
to  be  vested  in  right  or  interest. 
Vesting  in-        Sometimes  the  word  vested  is  used,  not  in  the  82 

choately  or  strict  and  technical  sense,  but  to  express  a  vesting 
inceptively.  snb  7nodo,ixn  attaching  inchoately  or  inceptively;  as,  '=where 
an  interest  is  said  to  vest  in  certain  persons  before  the  death 
of  the  testator,(c)  in  which  case  it  is  meant  to  signify  that 
the  interest  has  so  far  attached  in  the  party,  that  if  the  tes- 
tator were  to  die  immediately,  it  would  be  completely  vested 
in  the  party,  instead  of  being  dependent  on  some  subsequent 
contingency,  such  as  that  of  birth  or  survivorship.  And 
'i  so  where  an  interest  is  said  to  be  vested  in  a  person  so  far 
as  to  be  transmissible  to  his  representatives.(ri) 
Definition  An  executory  interest,  or  an  interest  in  the  84 

of  an  exccu-  narrowest  and  technical  specific  sense  of  ttie  word 


AVhen  an 
estate  is 
vested  in 
possession. 
See  §  49. 


(c)  Fearne's  statement  of  the  case  of  Hopkins  v.  Hopkins,  525. 

(d)  See  the  remarks  of  Lord  Thurlovv,  C.,in  Barnes  v.  Allen,  1  B. 


(d) 
cited  1  Rop.  Leg.  by  White,  513. 


C.C.  181, 


I.  3.  iii.]       OF  EXECUTORY  INTERESTS.    [§S5— 91.         [  28  ] 

interest,  is  a  present  or  contingent  right  of  present  or  future  tory  intorrst. 
possession  or  enjoyment,  or  both,  constituting  the  object  of  a  See  §  63,  05, 
hniitation  whereby  a  grant,  devise,  or  bequest,  is  made,  and  See  §  09. 
not  yet  clothed  with  the  seisin,  ))roperty,  or  ownership,  but 
destined  to  be  clothed  therewith  in  a  certain  or  contingent 
event.     In  this  sense,  the  word  interest  is  frequently  used  in  See  §76, and 
contradistinction  to  an  estate.  note  (b). 

85  A  CERTAIN  EXECUTORY  INTEREST  is  a  prcscut  Definition  of 
riglit  of  having  the   possession  or  enjoyment,  or  a  certain  e.\- 

both,   at   a    future    period,    which    is   sure    to    arrive,  and  ecutory  in- 
irrespective   of   tile   regular   expiration   of  any   other   in-  teresit. 
terest. 

86  A  CONTINGENT  EXECUTORY  INTEREST  is  a  con-  —  of  a  con- 
tingent right  of  having  the  possession  or  enjoy- ^'"g^"^  .^-"^^• 
ment,  or  both,  in  some  uncertain  event.  cutory  mier- 

87  2.  A  VESTED  INTEREST  Or  au  actual  estate,  i/^^  ' 
defined  wilhout  reference  to  the  ris;ht  of  possession  ^-  Definition 

or  enjoyment,  is  the  seisin,  property,  or  ownership,  or  a  por-  *^'  vested  and 
tion  thereof,  which  in  the  case  of  real  estate  is  of  the  mea-  f"''^*^"  ory  m- 
sure  of  freehold,  actually  acquired  by  and  residing   in  the      fref  re 
person  who  is  said  to  have  an  estate  or  vested  in-  ^^  theri<^ht 

88  terest.     And  a  present  vested  interest  is  the  of  posset- 
entire  seisin,  property,  or  ownership,  of  which  any  ^^^^  ^j.  ^^j_ 

subject  of  property  is  susceptible,  or  the  immediate  portion  ^•o^;;,^;^^^ 
thereof,  which,  in  the  case  of  real  estate  is  of  the  measure  of — ofavested 
freehold,  actNally  acquired  by  and  residing  in  the  person  interest,  or 
who  is  said  to  have  such  present  vested  interest,  actual  estate. 

89  Whereas,  a  future  vested  interest  in  lands  or  —  of  a  pre- 
TENEMENTs,  is  a  portiou  of  the  seisin,  property,  or  sent  vested 

ownership,  of  the  measure  of  freehold,  next  after  a  preced-  interest. 
ing  freehold  estate,  and  actually  acquired  by  and  residing — ofa  future 

in  the  person  who  is  said  to  have  such  future  vested  vested  inter- 
89a  interest.     A  future  vested  interest  in  chat-  ^^*'  '"  'ands 

TELs  is  a  portion  of  the  property  or  ownership,  or^iencrnents. 
next  after  a  preceding  vested  interest,  and  actually  acquired  ^^^^^^  ^^^^ 
by  and  residing  in  the  person  who  is  said  to  have  such  future  ^^[-^^^  ^^^^^^  ' 

vested  interest.  fg]g 

90  An  executory  interest  is  the  seisin,  property,       * 

or  ownership,  or  a  portion  thereof,  of  the  measure  ^^^q  •jj^^.j., 
of  freehold,  not  yet  acquired  by  the  person  who  is  said  to  ^^^^   •' 

have  such  executory  interest,  but  appointed  by  the  terms  of '^^  ^  ^^^_ 

a  grant  or  devise  to  be  acquired  by  and  to  reside  in  him  in  ^ain  execu- 
a  certain  or  coiUingent  event.     And  when  such  event  is  tory  interest, 
certain,  the   interest   is  a  certain  executory   interest  [^  oy  ] 

when  the  event  is  contingent,  the  interest  is  a  contingent  Definition 
executory  interest.  ofa  con- 

tingent executory  interest. 

91  '■"Vested  and   executory  interests  Iiave  been  de-  Vested  and 


L  29  ]  I.  3.  iii.]  AN   ORIGINAL  VIEW  [§92—94. 

exccuforyin-  fined  by  the  great  authority  upon  the  subject,  with  re- 
teresis  are  ference  to  the  right  of  possession  or  enjoyment. (e)  This 
most  correct-  is  convenient  in  some  respects.  But,  it  must  be  observed, 
ly  defined  xhdii  a  vested  interest  may  frequently  be  unattended  with 
without  refe-  j|^g  right  of  possession  or  enjoyment;  since  that  right  may 
rcnce  to  the  t[q^[^q  \y^  some  other  person  than  the  individual  having  such 
light  otpos-  ygsted  interest.  And  hence,  as  the  right  of  possession  or 
^^'^^''^^^^  ^""  enjoyment  is  only  a  separable  incident,  perhaps  it  is  not 
•^  -  '  strictly  correct  to  make  it  the  basis  of  a  definition  of  a  vested 
bee  ^  o{).  interest.  Such  interests,  therefore,  may  perhaps  be  more 
scientifically  and  accurately  defined  wilhout  reference  to 
See  §  87-90.  the  right  of  possession  or  enjoyment,  as  in  the  definitions 

lastly  above  given. 
The  several        Definitions  of  the  several  kinds  of  certain  and  92 

kinds  of  cer-  contingent  executory  interests,  are  embodied  in,  or 
tain  and  con-  may  be  immediately  formed  from,  the  definitions  of  the  limi- 
tingcnt  exe-    tations  creating  such  interests,  as  given  in  the  next  chapter, 
cutory  inter-  Thus,  a  limitation  of  a  springing  interest  is  there  defined  to 
^^^^-  be,  a  limitation  which  creates  an  interest,  by  way  of  use  or 

See  §  117.     devise,  to  take  effect  &c.,  from  which  the  reader  will  per- 
ceive, that  a  springing  interest  is  an  interest,  by  way  of  use 
See  §  128,     or  devise,  to  take  effect  &c. :  And  so  with  alternative  inter- 
159.  ests  and  interests  in  remainder.     And  interests  under  aug- 

See  §  137,  mentative,  deminuent,  and  conditional  limitations,  and  inter- 
147,  149,  ests  under  limitations  of  the  whole  or  the  immediate  part  of 
■^^^-  a  reversion,  may  of  course  be  defined  by  means  of  the  defi- 

nitions of  such  limitations.  Thus,  an  interest  under  an 
See  §  137.  augmentative  limitation,  is  an  interest  under  a  limitation  by 
deed  at  common  law,  under  which  &c.  It  was  considered 
highly  desirable  to  give  distinct  definitions  of  the  several 
limitations;  and  it  appeared  that  this  general  direction 
would  render  it  unnecessary  to  give  separate  definitions 
also  of  the  interests  created  by  such  limitations. 
[  30  ]  II.  Looking  to  the  nature  of  the  contingency,  con-  93 

II.  Division   tingent  interests  may  be  further  divided  into — 
of  contingent  i.   Those  which  are  contingent  on  account  of  the 

interests  with  person. 

reference  to  £.  Those  which  are  not  contingent  on  account  of  the 

the  nature  of  person 

the  contm-  ^    Those  wliich  are  contingent  both  on  account  of 

^*^"^^'  the  person,  and  also  on  account  of  some  other 

contingency. 
Definition  of      An  interest  which  is  contingent  on  account  of  94 

an  interest     the  person,  is  one  which  is  contingent  by  reason  of 
which  is  con-  being  limited  to  a  person  who  is  unborn  or  not  yet  ascer- 
tingent  on      tained  ;  or  limited  to  a  person  when  he  shall  sustain  a  par- 
account  of     ticular  character,  arrive  at  a  given  age,  or  fulfil  a  certain 
the  person,     condition. 

(e)  Fearne,  2. 


J.  3.  lii.]     OF  EXECUTORY  INTERESTS.  [§95—101.  [  30  ] 

95  III.  Contingent  interests  arc  also  susceptible  of  nf    Division 

further  divisio)i  in  regard  to  their  capacity  of  trans-  of  contingent 
mission.     But  this  will  form  the  suhject  of  a  distinct  chap-  interests 
tcr.     (See  §  742-8.)  with  refer- 

cncc  to  transmission. 

D6  IV.  With  reference  to  the  certainty  of  their  du-  IV,  Division 

ration,  interests  are  divided  into —  of  interests 

1.  Defeasible.  with  refer- 

2.  Indefeasible,  or  absolute.  ence  to 

certainty  of 

97  A  DEFEASIBLE  interest  is  an  interest  that  is  sub-  duration, 
ject  to  be  defeated  by  the  operation  of  a  subse-  Definition  of 

quent  or  mixed  condition,  or  by  the  exercise  of  a  power.  »  defeasible 
(See  §  12,  15—19,  14,  20.)  interest. 

98  An  INDEFEASIBLE  iutcrcst,  or  an  absolute  in of  an  in- 
terest as  opposed  to  a  defeasible  interest,  is  one  defeasible  or 

that  is  not  subject  to  any  condition  now  liable  to  be  defeated  absolute  in- 
by  the  exercise  of  a  power.  terest. 

99  V.  With  reference  to  the  quantity  of  interest,  v.  Division 
they  are  divided  into —  with  rcfer- 

1.  Absolute.  ence  to 

2.  Limited.  quantity  of 

interest. 

100  The  absolute  interest,  as  opposed  to  a  Ibnited  Definition  of 
interest,  is  an  interest  which  comprises  the  entire  the  absolute 
ownership  of  which  the  entirety,  or  some  portion  interest. 

101  of  the  entirety,  of  any  hereditament,  is  susceptible. 

A  limited  interest  is  one  which  does  not  comprise  [  31  ] 

102  that  entire  ownership.    When  the  term  "  absolute"  — of  a  limit- 
is  used  in  this  sense,  the  defnute  article  "  the"  is  ed  interest. 

usually  prefixed  to  it,  as  above,  in  order  to  distinguish  it  -j^j^^  distinc- 
from  "tt/i  absolute  interest"  in  the  sense  of  an  in-  ^j^j^  between 

103  defeasible  interest.  But  the  term  "  an  absolute  t^g  absolute 
interest"  is  sometimes,  though  not  often,  used  even  interest  and 
in  opposition  to  the  term  "limited  interest."  an  absolute 

interest. 

104  These  definitions  equally  apply  whether  the  in-  PoreaoinT 
terests  are  legal  or  equitable,  in  real  or  in  personal  definiiions 

estate,  according  to  the  nature  of  the  ownership  or  property  applicable  to 
which  they   respectively  constitute  :  the  word  property  or  legal  and 
"ownership,"  in  the  case  of  a  legal  interest,  referring  of  equitable  in- 
course   to  the  legal  ownership;  and  the  same  word,  in  the  terests,  and 
case  of  an  equitable  interest,  referring  to  the  equitable  or  to  real  and 
beneficial  ownership.  personal 

estate. 


Vol.  II.— 4 


[  32  J  I.  4.  ii.] 


AN  ORIGINAL  VIEW        [§105— UL 


CHAPTER  THE  FOURTH. 


REMAINDERS  IN  GENERAL,  AND  THE  OTHER  KINDS  OF 
LIMITATIONS,  IN  THE  DERIVATIVE  SENSE,  ANALYTICAL- 
LY   ARRANGED,    DEFINED,    AND     DISTINGUISHED. 

We  have  seen  in  a  preceding  page,  that  the  word  105 

Hmitation  is  used  in  two  senses,  which,  for  conve- 
nience,are  there  respectively  designated  "the  original  sense" 
and  the  "derivative  sense." 

Limitations  in  the  derivative  sense,  that  is,  en-  196 

tire  sentences  8creating,(«)  and  actually  or  con- 
structively marking  out  the  quantity  of  an  estate,  are  those 
which  form  the  subject  of  the  present  chapter. 

SECTION  THE  FIRST. 

Divis^ioji  of  Limitations  into  Simple  and  Qualified,  with 
definitions  of  those  terms. 

In  regard  to  the  manner  in  which  the  estate  107 

created  is  founded,  such  limitations  may  be  divided 
into — 

I.  Simple  or  ''absolute  limitations.(5) 
II.  Qualified  limitations. 

1.  Directly  qualified. 

2.  Indirectly  qualified. 

Definition  of     What  is  here  termed  a  simple  or  absolute  limi-  108 

a  simple  or    tation,  is  a  sentence  creating  an  estate  with  only 

absolute  Ii-     a  general  limitation  (in  the  original  sense,)  or  limit. 

mitation.        On  the  other  hand,  what  is  Ijere  termed  a  quali-  109 

Definition  of  fied  limitation,  is  a  sentence  creating  an  estate 

a  qualified  Ii-  with  a  special  or  collateral  limitation  (in  the  original  sense,) 

mitation.        or  limit.     (See  §  26,  28,  34.) 

Distinction          Qualified  limitations  may  be  subdivided  into  di-  110 

between  di-    rectly  qualified  and  indirectly  qualified,  according 

rectly  quali-  as  the  special  limitation  or  limit  is  direct  or  indirect.     (See 

fied  and  indi-  §  41 — 2. 

[  33  ]  SECTION  THE  SECOND. 

lectiy  quail-  jji^i^Iqji  qP  Jjimitations  into  Immediate  and  Executory. 

ivith    Definitions   of  those   terms,   and    Observations 

thereon. 

Limitations,  or  the  gifts  made  by  them,  when  111 

considered  with  reference  to  their  conferring,  or 
not  conferring,  vested  interests,  are  termed  either, 


Two  senses 
of  the  word 
limitation. 

Definition  of 
a  limitation, 
in  the  deriva- 
tive sense. 
See  §28-33. 


Division  of 
such  limit- 
ations into 
simple  and 
qualified. 


fied  limit 
aliens. 


Division  of 
limitations 
into  imme- 
diate and 
executory. 


(a)  See  Prest.  Shep.  T.  117. 

\h)  Fearne,  10,  note  (A),  fifth  paragraph. 


I.  4.  ii.]  OF  EXECUTORY  INTERESTS.  [§llla— lUc.         [  33  ] 

I.  Immediate  grants,  devises,  bequests,  or  limitations ;  mean- 

ing thereby,  limitations  or  gifts  of  vested  niterests,  whe-  See  §  75. 
ther  present  or  future;  or 

II.  '^Executory  grants,  devises,   bequests,   or  limitations; 

meaning  thereby,  limitations,  or  gifts  of  executory  in-  See  §  75. 

tercsts,  whether  certain  or  contingent. (c) 
Ilia  The  term  "executory  devise"  would  have  been  The  generic 

most  properly  used  as  above,  in  the  generic  sense,  sense  of  the 
in  contradistinction  to  an  immediate  devise,  so  as  to  include  '^'I'm  "cxe- 
contingent   remainders,  as  well  as  other  *^  future  interests  cutory  de- 
"  limited  to  arise  and  vest  upon  some  future  contingency  ;"(6?)  ^'^^• 
so  as  to  comprise,  in  fact,  all  limitations  of  executory  inter-  See §84,  90. 
ests  by  way  of  devise,     liut  the  term  is  almost  invariably  The  specific 
used  in  a  narrower  sense,  in  contradistinction  as  well  to  con-  and  usual 
tingent  remainders,  as  to  immediate  devises,  so  as  to  denote  sense  of  the 
'■"such  a  limitation  of  a  future  estate  or  interest  in  lands  or  term, 
ciiattels,  as  the  law  admits  in  the  case  of  a  will,  though  con- 
trary to  the  rules  of  limitation  in  conveyances  at  common 
law,"(e)  or,  in  other  words,  to  denote  limitations  of  spring- 
ing interests,  limitations  of  interests  by  way  of  conditional  Sec  §  117, 
limitation,  and  quasi  remainders  after  a  life  interest  \n  per-  148-9,  16S- 
sonal  estate  ;  as  distinguished  from  those  limitations  of  fu- 168b. 
ture  interests  which  were  good  limitations  at  common  law  ;  See  §  159, 
namely,  limitations  by  way  of  remainder,  limitations  of  the  169. 
whole  or  the  immediate  part  of  a  reversion,  augmentative  [  34  ] 

limitations,  and  diminuent  limitations.    An  alternative  limi-  See  §  137, 
tation,  though  always  an  executory  devise  in  the  generic  147,  128. 
sense  of  the  term,  as  opposed  to  an  immediate  devise,  is  not 
always  an  executory  devise  in  the  specific  and  usual  sense, 
in  contradistinction  to  contingent  remainders;  for  many  al- 
ternative limitations  are  contingent  remainders  in  relation  to 

the  particular  estate. 
111b  Limitations  of  springing  interests,  conditional  ^"®  S^"*^'"'^ 

limitations,  (77/ rt5i  remainders  after  a  life  interest  in  ^^'""^  execu- 
personal  estate,  and  alternative  limitations,  when  contained  ^'^'"^'  "'^^'^^ 
in  wills,  are  seldom  distinguished  or  desii?nated  by  these  or  <^o''""^o"  X 
any  other  specific  terms,  but  are  usually  denoted  by  ^^e^        -^ 

general  term  of  executory  devises.  terms 

111c  It  has,  doubtless,  been  found  convenient  to  use  „       ' 

this  general  term,  and  other  general  terms,  instead       '*  '!!^ 
01  more  specihc  terms — convenient,  that  is,  m  one  respect;  ''.•^     ^-^ 
■namely,  because  the  learning  of  executory  it^terests,  «.y  a  jj^g"^ji^   ^.^.p^^^ 
science,  may  perhaps  be  truly  said  to  have  been  hitherto  in  ^^^^^  of  tlie 

(c)  See  Fearne  1,  note  (a). 

{(l)  See  the  definition  quoted,  Feavne,  381. 

(e)  Fearne,  386.  Rents,  offices,  and  dignities,  not  previously  subsisting, 
might  be  limited  to  commence  in  fuluro,  even  at  common  law.  Fearne,  528, 
529. 


[   34  ]  I.  4.  ii.] 


AN   ORIGINAL  VIEW 


[§lllc. 


science,  and 
has  been very 
prejudicial. 


[   35  ] 


For  this  rea- 
son, specific 
terms  are 
used  in  the 
present  es- 
say, rather 


its  infancy.  Cases,  indeed,  in  abundance  upon  this  branch 
of  law,  have  been  brought  before  the  Courts  and  decided, 
and  with  few  exceptions,  rightly  decided;  and  these  deci- 
sions liave  equally  illustrated  the  immense  value  of  the  prac- 
tice of  hearing  counsel  on  both  sides,  and  the  sound  judg- 
ment and  strict  integrity  of  those  learned  men  whose  duty  it 
has  been  to  decide  between  the  opposite  lines  of  argument. 
BiU,  at  the  same  time,  the  arguments  of  counsel,  the  dicta 
of  tlie  judges,  and  the  propositions  in  the  books  ;  and  above 
all,  and  as  the  inevitable  result  of  these  arguments,  dicta, 
and  propositions,  the  reiterated  call  for  fresh  judicial  deci- 
sions upon  points  which  other  cases  had  previously  and 
satisfactorily  decided ;  not  unfrequcntly  evince  the  want  of 
a  correct  and  perspicuous  analytical  arrangement  of  the  dif- 
ferent kinds  of  interests,  and  the  various  sorts  of  conditions 
and  limitations  on  which  they  depend,  or  by  which  they 
are  created  or  affected  ;  as  well  as  the  want  of  just  and  pre- 
cise definitions,  including  all  that  ought  to  be  included,  and 
excluding  every  thing  else  ;  and  the  non-existence,  in  many 
instances,  of  accurate  and  well-defined  distinctions,  embo- 
died in  rules  and  propositions,  and  explained  and  conmiend- 
ed  by  the  expression  of  the  grounds  and  reasons  on  which 
they  rest.  Such  having  been  the  state  of  this  branch  of  the 
law,  it  is  not  surprising  that  general  rather  than  specific 
terms  have  commonly  been  used.  In  fact,  it  was  an  almost 
necessary  result  of  the  imperfect  state  of  this  branch  of  legal 
learning,  as  a  science,  either  .as  it  existed  in  the  mind  of  the 
speaker  or  writer  on  the  one  hand,  or  in  the  mind  of  the 
hearer  or  reader  on  the  other  hand.  And,  in  many  cases, 
indeed,  it  has  been  as  well  to  use  a  general  designation  as 
to  use  a  specific  term :  and  of  course,  in  some  instances, 
where  the  object  is  to  generalise,  and  generalisation  can  be 
accomplished  with  accuracy,  the  general  designation  is  the 
most  appropriate.  But,  in  the  great  majority  of  cases,  the 
maxim,  error  latet  in  generallbus,  was  peculiarly  applica- 
ble ;  and  the  use  of  general  designations,  instead  of  specific 
terms,  has  been  the  source  of  passages  in  the  books,  which, 
embracing  distinct  and  dissimilar  cases,  greatly  tend  to  mis- 
lead ;  of  vague,  confused,  and  erroneous  conceptions  in  the 
student;  of  perplexity  and  mistake  in  the  practitioner,  and 
sometimes  even  in  the  judges  themselves;  and  of  constant 
litigation  upon  points  which  would  or  might  otherwise  have 
been  long  before  set  at  rest. 

In  the  present  allempt,  therefore,  to  give  an  accurate, 
well-defined,  and  perspicuous  view  of  the  various  kinds  of 
future  interests,  the  author  has  almost  always  employed  a 
specific  term,  in  preference  to  a  general  designation;  and  in 
fact,  ''contrary  to  the  course  hitherto  pursued,(/)  has  ex- 

(/)  See  Fearne,  415. 


I.  4.  iii.]  OF  EXECUTORY  INTERESTS.  [§llld— Ulg.  [  35  ] 

hibited  and  treated  of  the  various  conditions,  limitations,  than  general 

and  interests,  with  especial  '""regard  (to  use  the  language  of  terms;  and 

Fearne)    to    tlieir   specific   distinctions    and   relations."(/)  the  specific 

This,  the  author  humbly  submits,  is  the  only  way  of  endca-  distinctions 

vouring,  with  any  j)rospect  of  success,  to  mould  the  subject  ^"^  relations 

into  a  more  correct,  determinate,  and  scientific  form,  so  as  to  °  "*"   J^' 

•  1  *  iW'con  inG 

rescue  it  from  that  state  of  distressing  uncertainty,  discrep-  ^^  •  „^  „^„ 

ancy,and  confusion, m  which  many  points  in  reality,  though  ^y^^■^^^^   u^^i. 

not  apparently  to  the  superficial  observer,  were  left,  even  j^^^j^^^g^  ^^^j 

after  the  publication  of  the  justly  celebrated   Treatise  of  jj^j^^^.g|^  g^g 

Fearne  ;  and  in  which  state,  many  more  points  exist  at  the  pointed  out. 

present  day,  after  the  long  interval  that  has  elapsed  since  [   36  ] 

tlie  deatli  of  that  illustrious  man. 

SECTION  THE  THIRD. 

Of  Limitations  of  Vested  Interests,  ivhen  considered  with 
reference  simply  to  the  possession  or  enjoyment.,  or  both. 
1 1  id         I.  Of  limitations  of  interests  vested  in  possession, 
or  in  enjoyment,  or  in  both. 
These  are  limitations  which  confer  a  right  to  the  imme- 
diate possession,  or  enjoyment,  or  both,  as  well  as  the  im- 
mediate portion  of  the  seisin,  properly,  or  ownership  of  and 
in  real  or  personal  estate. 

1 1  le         II.  Of  limitations  of  vested  interests  in  real  estate, 
subject  to  a  term  for  years. 

These  are  limitations  which  merely  suspend  the  posses-  See  §  245 — 
sion  or  enjoyment,  or  the  possession  and  enjoyment,  of  real  257,  124a. 
estate,  till  the  certain  regular  expiration  of  a  term  for  years, 
without  suspending  the  seisin,  property,  or  ownership  of  and 
in  such  real  estate. 

11  If          III.  Of  limitations  of  vested  interests,  subject  to  a  Sec  Part  II. 
chattel  interest  of  uncertain  duration.  c.  VIII. 

These  are  limitations  which  merely  suspend  the  posses- 
sion or  enjoyment,  or  the  possession  and  enjoyment,  of  real 
or  personal  estate,  till  the  determination  of  a  prior  chat- 
tel interest  of  uncertain  duration,  without  suspending  the 
seisin,  property,  or  ownership  of  and  iu  such  real  or  per- 
sonal estate. 

1 1  Ig         IV.  Of  other  limitations  of  vested  interests,  sub-  See  Part  II. 
ject  to  a  suspension  of  the  j^ossession  or  enjoy-  c.  VIII. 
ment,  or  l)oth. 
These  are  limitations  which  merely  suspend  the  posses- 
sion or  enjoyment,  or  the  possession  and  enjoyment,  of  the 
real  or  personal  estate,  till  a  future  time  other  than  that  of 

(/)  See  Fearne,  415. 


[36]  I.  4.  iv.]  AN   ORIGINAL  VIEW  [§112. 

the  determination  of  a  prior  interest,  without  suspending  the 
seisin,  property,  or  ownership  of  and  in  such  real  or  personal 
estate  :  as  if  real  or  personal  estate  be  devised  or  bequeathed 
[  37  ]  to  a  person  ;  with  a  direction  that  he  shall  take  a  vested 

interest,  but  that  he  shall  not  be  put  into  possession  till  he 
shall  attain  his  majority. 

SECTION  THE  FOURTH. 

A  Fourth  Division  of  Limilations  into  those  forming  the 
subject  of  the  folloicing  sections. 

With  reference  to  the  existence  or  non-existence,  1 12 

certainty  or  uncertainty,  of  the  possession  or  enjoy- 
ment by  virtue  of  the  interests  which  they  create,  as  well  as 
to  the  various  modes  in  which  they  are  constructed,  limita- 
tions may  also  be  divided  into, 
See  §  75a,     I.  Limitations  constituting  grants,  devises,  or  bequests,  in 
77,78a,  8S.  prxseiiti,  or  limitations  of  present  vested  interests. 

See  §  113.  1.  Absolute. 

Sec  §114.  2.  Hypothetical. 

See  §  115.  3.   In  default  of  appointment. 

II.  Limitations  constituting  grants,  devises,  or  bequests,  in 
futuro. 
See  §78,  89.  1.  Limitations  creating  future  vested  interests. 

§159,171.  (1)  Limitations  by  way  of  vested  remainder. 

See  §  168.  (2)  Limitations  by  way  of  vested  ^i^«5?  remainder. 

See  §  1G9.  (3)  Limitations  of  vested  interests  in  the  whole,  or 

in  the  immediate  part,  of  a  reversion. 
See  §  85,  90.  2.  Limitations  creating  certain  executory  interests. 

§  117,127b.  (1)  Limitationsof  springing  interests; 

See  §  137.  (2)  Augmentative  limitations; 

See  §147.  (3)  Diminuent  limitations;  and 

See  §  148-9.  (4)  Conditional  limitations  ; 

— where  such  limitations  are  to  take  effect  on 
an  event  or  at  a  time  certain. 
See  §  86,  90.  3.  Limitations  creating  contingent  executory  interests. 

§117,  127b.  (1)  Limitations  of  springing  interests; 

See  §  137.  (2)  Augmentative  limitations; 

See  §  147.  (3)  Diminuent  limitations ;  and 

See  §  148-9.  (4)  Conditional  limitations  ; 

— where  such  limitations  are  to  take  effect  on 
an  event  or  at  a  time  which  is  uncertain. 
[  38  ]  (5)  Limitations  by  way  of  contingent  remainder. 

§  159,  172.  (G)  Limitations  by  way  of  contingent  quasi  re- 

See  §  168.  mainder. 

See  §  169.  (7)  Limitations  of  contingent  interests  in  the  whole 

or  the  immediate  part,  of  a  reversion. 
See  §  128.  (8)  Alternative  limitations. 

See  §  116.  (9)  Clauses  creating  powers  of  appointment. 


I.4.v.—vii.]  OF  EXECUTORY  INTERESTS.  [§113— 117.      [  38  ] 

SECTIOxN  THE  FIFTH. 

Of  Limitations  of  Present  Vested  Interests,  when  consid-  See  Sect.  III. 
ercd  with  reference  to  the  modes  in  which  they  are  con- 
structed. 

113  I.    Of  absolute  limitations. 

An  absolute  limitation  is  a  sentence  by  which  an  estate  is 
created  so  as  not  to  be  dependent  on  any  condition  whatever. 

114  II.   Of  ^hypothetical  limitations. 

What  is  here  termed  an  hypothetical  limitation,  is  a  sen- 
tence which  creates  an  estate  in  an  event  or  on  a  condition 
fulfilled  or  decided  at  or  before  the  delivery  of  the  deed,  or 
Bto  be  fulfilled  or  decided  at  or  before  the  death  of  the  tes- 
tator. (5-) 

115  HI.   Of  limitations  in  default  of  appointment. 

A  limitation  in  default  of  appointment,  is  a  sentence  in 
which  an  estate  is  limited  to  a  person,  in  case  of  the  non-ex- 
ercise of  a  power  of  appointment;  and  the  effect  of  which  is, 
to  create  a  vested  interest,  subject  to  be  defeated  by  the  ex- 
ercise of  the  power. 

SECTION  THE  SIXTH.  [  39  ] 

Of  Limitations  iTf  TVTVViO:  and  first, 
Of  clauses  creating  powers  of  appointment. 

116  These  are  clauses  by  which  land  is  limited  to 
uses  to  be  appointed  by  a  particular  person,  either 

in  the  absence,  or  in  defeasance,  postponement,  or  modifica- 
tion of  uses  previously  limited  by  the  instrument  creating 
the  power. 

SECTION  THE  SEVENTH. 

Of  Limitations  of  Springi7ig  Litei^ests. 

117  A  LIMITATION  of  a  Springing  interest  in  real  Definition  of 
estate,  is  a  sentence  which  creates  an  interest,  by  a  limitation 

way  of  use  or  devise,  to  take  effect  at  a  future  time,  without  of  a  spring- 
being  supported  by,  and  without  affecting  any  other  interest  jng  interest 

of  the  measure  of  freehold.  J"  ^^^'  P"""- 

party. 

*  For  the  sake  of  convenience,  perspicuity,  and  exactness,  the     See  §  111c. 
author  has  reluctantly  been  obliged  to  make  use  of  this  and  one  or 
two  other  new  specific  terms,  where  there  has  been  no  term  in  common  use  ex- 
cept the  generic  term. 

{g)  Fearne,  458,  note  {d). 


[39]  I.  4.  vii.]  AN  ORIGINAL  VIEW         [§118—122. 

Division  of        Limitations  of  this  description  may  be  distributed  118 

such  limita-   into  seven  kinds: 

tions  into  I.  The  first  is  a  sentence  which  creates  an  inter-  119 

seven  kinds,  est  in  favour  of  a  person  unborn  or  unascertained, 
Definition  of  or  an  interest  which  is  Hmited  to  take  effect  at  a  future  time, 
thefirstkind.  without  being  preceded  by  any  other,  or  ^'merely  preceded 
by  a  term  for  years  which  is  to  commence  at  a  future  time. (A) 
As  'in  the  case  of  a  devise  to  take  effect  six  months  after 
the  testator's  death;  or  a  devise  to  the  first  son  of  .7.  S., 
when  he  shall  have  one,  or  the  heir  of  J.  S.,  a  person  who 
is  living.(«) 
Gardner  v.        An  instance  of  this  kind  of  springing  interest  occurred 
Lyddon,  3.    where  a  testator  gave  to  two  persons  and  their  heirs,  to  sell 
You.andJer.  and  dispose,  at  their  discretion,  one  quarter  part  of  all   his 
[  40  ]  riglit  in  Moorlinch,  if  an  act  should  pass  for  inclosing  the 

389.     See     said  moor  within  20  years.     And  he  directed  the  moneys  to 
also  Wood-    arise  by  such  sale,  to  be  divided  between  certain  persons 
liffv.Drury,  wliom  he  named.     It  was  held  that  this  was  an  executory 
Cro.  Eliz.      devise  to  take  effect  after  an  inclosure  act. 
439,  as  sta- 
ted, Fearne,  275. 

Definition  of     1 1-  The  second  is  a  sentence  which  creates  a  120 

the  second     freehold  interest  to  take  eflect  on  the  regular  cer- 
kind.  tain  expiration  of  a  chattel  interest,  but  such  freehold  inter- 

See  §  124a.   est  is  contingent  on  account  of  the  person.     As  where  a 
testator  devises  to  Jl.  for  21  years,  and  then  to  the  first  un- 
born son  of  B.  in  fee. 
Definition  of      III.  The  third  is  a  sentence  which  creates  a  free-  121 

the  third        hold  interest  which  is  to  take  effect  after  a  preced- 
kind.  ing  chattel  interest,  but  only  on  a  contingent  determination 

See  §  34-  of  such  chattel  interest  by  force  of  a  special  or  collateral 
42,  124a.  limitation.  As  if  land  is  devised  to  A.  for  21  years,  if  ^. 
shall  so  long  remain  at  Rome ;  and  if  he  quit  Rome  during 
the  term,  to  C.  in  fee.  Or,  where  land  is  devised  to  j1.  for 
21  years,  if  he  shall  so  long  live;  and  on  the  death  of  ./^., 
then  to  B.  in  fee. 
Danfrer  of  There  is  a  danger  of  '^confounding  the  kind  of  122 

confounding  springing  interest  exhibited  in  the  first  of  these  ex- 
the  second      amples,  with  a  contingent  remainder  of  the  first  class  here- 
third,  and  '    after  mentioned. (A?)      Such  a   limitation   might  indeed  be 
fourth  kinds  termed  a  remainder,  as  regards  the  possession,  or  the  enjoy- 

{h)  Pay's  Case,  Cro.  Eliz.  878,  as  stated,  Fearne,  400,  539. 

(i)  See  Fearne,  395 ;  and  Gore  v.  Gore,  2  P.  W.  28,  as  there  stated.  See 
also  Fearne,  400, 

[k)  The  learned  Editor  of  the  former  editions  of  Fearne  appears  to  have  fallen 
into  this  error.  (Sec  Fearne,  5,  note  {d),  fifth  paragraph.)  And  yet  he  agrees 
with  Fearne  in  stating,  that  a  contingent  remainder  requires  a  preceding  freehold 
to  support  it. 


I.  4.  vii.]   OF  EXECUTORY  INTERESTS.  [§123—125.         [   lo  ] 

ment,  or  both.  But  it  is  not  a  remainder,  in  relation  to  the  oflimitations 
.seisin,  property,  or  owncrsliip,and  therefore  not  a  remainder  of  springing 
properly  so  called.  interests  with 

contingent  rennainders. 

And  the  same  danger  exists,  in  fact,  of  confounding  other  See  §  159, 
instances  of  the  second,  third,  and  fourth  kinds  oflimitations  102. 
of  springing  interests  with  contingent  remainders. 

123  IV".  The  fourth   is  a  sentence  which  creates  a  Definition  of 
freehold  interest  after  a  preceding  term  for  years,  the  fourth 

to  take  ert'ect,  in  right,  on  an  event  or  at  a  time  uncon-  [  41   ] 

nected  with  the  original  measure  and  the  regular  expiration  kind, 
of  the  term.     As  where  land  is  devised  to  A.  for  21  years  ;  See  §  124a. 
and  if  *^.  shall  die  within  the  term,  then,  on  the  expiration 
of  the  term,  to  B.  in  fee. 

124  V.  The  fifth  is  a  sentence  which  creates  a  free-  Definition  of 
hold  interest  after  a  preceding  term  for  years,  to  the  fifth 

take  effect,  in  possession,  or  enjoyment,  or  in  both,  in  de-  kind, 
feasance  of  the  term,  or  of  the  beneficial  interest  therein,  on  See  §  124a. 
an  event  or  at  a  time  which  may  happen  within  the  term, 
but  is  unconnected  with  the  original  measure  and  the  regu- 
lar expiration  of  the  term.  As  where  land  is  devised  to  xfi. 
for  21  years;  and  on  the  death  of  ./?.,  then  immediately  to 
B.  in  fee. 

This,  though  a  conditional  limitation,  specifically  so  called,  See  §  143,  9. 
as  regards  the  possession,  or  enjoyment,  or  both,  is  a  limita- 
tion of  a  springing  interest,  as  regards  the  seisin,  property,  See  §  117, 
or  ownership  ;  and  therefore  most  properly  classed  among  152. 
those  springing  interests  which  do  not  affect  a  prior  free- 
hold. 
124a  From  the  second,  third,  fourth,  and  fifth  kinds  Limitations 

of  springing  interests,  we  must  be  careful  to  dis-  of  vested  in- 
tinguish  limitations  of  vested  interests,  subject  to  a  term  or  terests,  sub- 
other  chattel  interest,  or,  in  other  words,  limitations  of  a  free-  ject  to  a 
hold  interest  in  favour  of  a  person  in  being  and  ascertained,  chattel  inter- 
to  take  effect  in  possession,  or  enjoyment,  or  both,  on  the  f's^  "^"^t  be 
regular  and  certain  expiration  of  an  actually  subsisting  term  "istinguishcd 
or  other  chattel  interest,  and  without  requiring  the  concur-    °"^ '      .  , 
rence  of  any  collateral  contingency.      And  from  the   first  second, lliird, 

kind,  we  must  distinguish  other  limitations  of  vested  inte-  ^,.,  ,'    ,      r. 

'       ,  .  ^         •  ,'    1  •  filth  kinds  of 

rests,  subject  to  a  suspension  ot  the  possession,  or  enjoy-  iii^^itations  of 

ment,  or  both.  springing  in- 

interests.     See  §  llle-lllg,  248-254. 

125  VI.  The  sixth  is  a  sentence  which  creates  an  Definition  of 
interest  to  take  effect  at  a  time  which  could  not  the  sixth 

arrive  till  a  period  subsequent  to  the  expiration  of  a  preccd-  kind, 
ing  interest  created  by  the  same  instrument,  or  which  might 
not  arrive  till  a  period  subsequent  to  the  expiration  of  an  in- 
terest created  by  a  prior   instrument.    (Sec  §  379.)     As 
Vol.  II.— 5 


[  41  ]  I.  4.vii.]  AN  ORIGINAL  VIEW       [§126— 127b. 

'where  a  devise  is  made  to  Jl.  for  life,  remainder,  after  the 
death  of  .^.  and  one  day  afterwards,  to  B.  for  life.(/) 
[  42  ]  VII.  The  seventh  is  a  sentence  which  creates  an  126 

Definition  of  interest  to  talvC  effect  on  the  rcgnlar  expiration  of 
the  sevenlli    a  qnaUficd  fee  which  mnst  expire,  if  at  all,  within  the  period 
kind,  prescribed  by  the  rnle  against  perpetnities.    As  '"where  land 

is  limited  by  way  of  use  or  devise,  to  Ji.  and  liis  heirs,  till 
B.  shall  &c. ;  and  then  to  B.  and  his  heirs.(m) 
Observation        ""  There  is  no  clearer  rule  in  law"  (says  Lord  127 

of  Lord  Not- Nottingham)  "than  this,  that  there  can  be  no  re- 
tingham.        mainder  limited  upon  an  estate  in  fee ;  yet  public  reason 
and  the  convenience  of  common  assurances  have  found  a 
way  to  pass  by  this  rule,  as  well  by  way  of  limitation  of 
use,  as  by  way  of  devise  ;  and  ergo,  if  the  father  limit  a  use 
to  himself  and  liis  heirs  until  a  marriage  happen,  and  then 
to  the  son  and  his  heirs,  this  is  a  good  fee  by  common  expe- 
rience."(w) 
Remarks  on       This  is  not  a  vested  interest,  subject  to  a  chattel  interest, 
the  case  put  because  the  marriage  might  never  happen  ;  and  it  was  never 
by  him.  intended  that  the  estate  of  the  father  and  his  heirs  should 

cease  unless  it  should  happen  ;  and  consequently  the  words 
of  limitation,  "and  his  heirs,"  must  carry  the  entire  owner- 
See  §lllf.  ship  of  which  the  land  was  susceptible.  This  case  is  dis- 
tinguishable from  that  of  a  limitation  to  trustees  and  their 
heirs,  till  A.  shall  attain  24,  with  a  limitation  over  to  A.  and 
his  heirs  when  and  as  he  shall  attain  24.  In  this  last  case, 
an  estate  is  given  to  the  trustees  for  a  limited  purpose  only; 
and  it  is  not  intended  that  their  estate  should  subsist  beyond 
the  time  when  Ji.  shall  attain  24,  or  when,  by  his  death 
under  that  age,  it  shall  have  become  impossible  for  that 
event  ever  to  happen.  And  therefore  the  words  "and  their 
heirs"  do  not  pass  the  fee,  and  the  trustees  only  take  a  chat- 
tel interest. 
rp,       ..    .  These  limitations  of  springing  interests  can  only         127a 

tions  can      '  *^°  ^^  ^^^^  °^  ^^'^^  ^^  devise.     They  would  be  void 
oniv  be  bv     ^^  inserted  in  a  deed  at  common  law. 
way  of  use  or  devise. 

[  43  ]  When  they  are  by  way  of  use,  they  are  sometimes  termed 

They  are       springing  uses.     Those  which  are  by  devise  are  usually  de- 
termed  signated  by  the  generic  name  of  executory  devises, 
springing 
uses  and  executory  devises. 

Definition  of       A  limitation  of  a  springing  interest  in  personal         127b 
a  limitation    estate,  is  a  clause  which  creates  an  interest,  by  way 

{V)  Fearne,  308. 

(m)  2  Bl.  Com.  334.     See  also  Fearne,  373. 

(«)  Lord  Notiingham,  in  Howard  v.  Duke  of  NorfoU',  2  Swanston,  461. 


I.  4.  viii.]  OF  EXECUTORY  INTERESTS.  [§12S— 131.         [  43  ] 

of  devise  or  of  trust,  to  take  cfTcct  at  a  future  lime,  without  of  h  sprinjr. 
beiug  preceded  by,  or  without  afiecting  any  other  interest,  ing  intr-ri-st 
Limitations  of  this  kind,  by  way  of  bequest,  are  usually  de-  n'  persf.rml 
signated  by  the  generic  name  of  executory  bequests.  i)ropcrty. 


SECTION    THE    EIGHTH. 
Of  Alternative  Limitations. 

128  An  alternative  limitation  is  a  sentence  which  Definition  of 
creates  an  interest  that  is  only  to  vest  in  case  the  an  alierna- 

next  preceding  interest  should  never  vest  in  any  way,  five  llmita- 
through  the  failure  of  the  contingency  on  which  such  pre-  tiun. 
ceding  interest  depends.  As  "where  a  testator  devises  to  A. 
for  life  ;  and  if  he  have  issue  male,  then  to  such  issue  male 
and  his  heirs  for  ever ;  and  if  he  die  without  issue  male, 
then  to  B.  and  his  heirs  for  ever;  or,  where  a  testator  be- 
queaths personal  estate  to  the  first  son  of  A.\  and  if  A. 
should  have  no  son,  tlien  to  B.{o) 

129  These   limitations,  or  the  gifts  made  by  them,  Different 
considered  in  conjunction  with   those   for   which  names  given 

they  are  substitutionary,  are  sometimes  termed  I'contingen-  to  these  iinii- 
cies  with  a  double  aspect ;(;?)  or  igifts  upon  a  double  con-  tations. 
tingency  •,(<7)  or  'gifts  or  devises  upon  two  alternative  con-  [  "^4  ] 

tingencies.(7-) 

130  From  the  definition  it  will  appear,  that  asnbse-  Requisites  to 
qnent  limitation  cannot  bean  alternative  limitation,  ^^'i  altcrna- 

unless  the  prior  limitation  for  which  it  is  a  substitute,  is  either  ^ive  limita- 
an  hypothetical  limitation,  or  a  contingent  limitation  when  ^^"\ 
considered  antecedently  to  the  event  on  which  the  subse-  ^^^  '^  ^^'^• 
qiient  limitation  is  to  take  effect;  nor  unless  the  contingency 
on  which  the  subsequent  limitation  is  to  take  effect,  is  the 
reverse  of  the  contingency  on  which  the  preceding  limitation 
is  to  take  effect. 

131  \Vhere  the  event  on  which  an  alternative  liniita-  'phe  omis- 
tion  is  to  take  effect,  is  the  non-existence,  at  a  par-  sion  of  the 

licular  time,  of  the  person  who  is  to  take  under  the  preced-  condition  on 
ing  limitation  ;  the  condition  that  such  person  shall  be  in  which  the 

(o)  Loddlngton  v.  Kitne,  1  Salk.  224,  as  cited,  Fearne,  225,  373,  And  see 
Doc  d.  Brown  v.  Holme,  3  Wils.  237,  241,  as  stated,  Fairno,  374;  and  His^gins 
V.  Dowhr,  ov  Dcrhi/,  1  P.  W.  9S  ;  Stanln/  v.  Leigh,  2  P.  \V.  686;  Stephens 
V.  Stephens,  Cas.  tcinp.  Tall).  228  ;  Grecn'v.  Ekins,  3  P.  W.  306.  note  (F),  4th 
cd.,  as  staled,  Fearne,  518 — 522. 

(p)  See  Goodtitlc  v.  BUlington,  Doiigl.  Rep.  725,  or  735  cd.  3;  and  Lod- 
dlngton V.  Kinie,  as  stated,  FcaniC;  267,  373 ;  and  Jlockley  v.  Maxchey,  1  Ves. 
149,  stated,  §  530. 

(7)  Arg.  of  Counsel  in  Leake  v.  Robinson,  2  Mcriv.  382. 

(r)  Arg.  of  Counsel  in  Ring  v.  Ilardwickc-,  stated  infra;  llocldcjj  v.  Maw- 
bey,  1  Vcs.  150. 


[  44  J         I.  4.  viii.]  AN  ORIGINAL  VIEW        [§132—135. 

prior  limita-  esse  at  that  time,  in  order  to  enable  such  prior  hmitation  to 
tion  is  to        take  effect,  is  'seldom  expressed,  and  is  only  implied  by  the 
take  effect,     circumstance  that  another  person  is  to  take  if  such  first  men- 
tioned person  is  not  in  esse  at  that  time.(5)     It  is  this  which 
so  frequently  causes  a  doubt,  whether  the  existence  of  the 
See  §  13.       party  is  a  condition  precedent  to  the  vesting  of  the  prior 
See  §  114.     limitation  ;  and  consequently,  whether  the  subsequent  limi- 
tation is  an  alternative  or  not.     It  would,  therefore,  be  desi- 
rable that  the  condition  should  be  expressed,  upon  which  the 
prior  limitation  is  to  take  effect,  as  well  as  the  opposite  con- 
dition on  which  the  subsequent,  alternative  limitation  is  to 
take  effect. 
Twokiiidsof     Alternative  limitations,  as  regards  their  form,  132 

alternative li-  may  be  divided  into  two  kinds.     The  one  may  be 
mitations,  as  termed  an  alternative  limitation  of  the  proper  or  explicit 
regards  Iheirybrm;  the  other,  an  alternative  limitation  of  the  improper 
form,  o/*  eUiptieal  form. 

[  45  ]  I.  An  alternative  limitation  of  the  ^ro;;er  o>' ea?-  133 

rk  c  •.•       f  plicit  form,  is  one  in  which  the  reverse  contin- 
Dennitionol  ^  i  •  u  *i        u         .•       •    .        ^    •    * 

,  gency  on  which  the  alternative  interest  is  to  arise,  is  ex- 

tive  limita-"     P^'^ssed  ;  as  in  the  example  above  given  in  illustration  of 
tion  of  the      the  definition  of  an  alternative  limitation.     (See  §  128.) 
proper  or  explicit  form. 

—  improper       II.  An  alternative  limitation  of  the  im^proper  or  134 

or  elliptical    elUplical  form,  is  one  in  which  the  reverse  con- 
form, tingency  on  which  the   alternative  interest  is  to    arise,  is 

only  implied. 
The  conlin-        The  contingency  is  sometimes  implied  by  the  135 

gency  some-  word  "or,"  introducing  the  limitation, 
times  implied      Thus,  where  a   testator  bequeathed  a  sum  of  stock  to 
by  tiie  word  each  of  his   nephews   and   nieces,   or   to   their   respective 
"  or-"  child  or  children  :  should  any  die  without  child,  his  share 

Montagu  v.  to  revert  to  the  residuary  legatee.  It  was  held,  that 
Nucella,  1  jIjq  legacies  vested  absolutely  in  the  nephews  and  nieces 
Kuss,  165.  ^y]jfj  survived  the  testator,  and  that  the  child  or  children  of 
the  nephews  or  nieces  took  only  as  substitutes  for  their  pa- 
rent or  parents  dying  in  the  testator's  lifetime.  The  same 
testator  appointed  as  liis  residuary  legatee  E.  P.  M.,  his 
child  or  children  ;  in  case  of  his  death  without  any  such, 
then,  the  residuary  interest  to  vest  in  his  other  nephews  and 
nieces  then  alive,  share  and  share  alike  ;  and,  as  before,  to 
each  of  their  respective  child  or  children;  and  in  case  of 
either  of  their  deaths  without  any  such  issue,  then  his  or  her 
share  to  be  divided  among  the  survivors,  or  to  vest  in  the 
last  survivor,  or  his  or  their  representative  or  representa- 

(s)  See  Hccldey  v.  Maichey,  1  Vcs.  142  ;  Doe  d,  Davy  v.  Burnsnll,  6  D.  & 
E.,  30 ;  Doe  d.  Gil  man  v.  Ehey,  4  East,  313 ;  Merest  v.  James,  4  Moore,  327, 
1  Brod.  &  Bing.  i:ii7,  stated,  §  530, 


I. '1.  viii.]     OF  EXECUTORY  INTERESTS.  [§136.  [15] 

tivcs.  It  was  licld.  that  the  words  "A'.  P.  71/.,  his  child  or 
children,"  must  he  read  as  "A\  P.  M.,  or  ins  child  or  chil- 
dren ;"  and  that  the  residuary  clause  must  he  construed  as 
the  previous  clause  was;  and  as  E.  P.  M.  survived  the  tes- 
tator, the  residue,  upon  that  construction,  vested  in  him  ab- 
solutely. If  he  had  died  leaving  children  who  surviverl  the 
testator,  they  would  have  taken  the  rcsi(hie  ;  had  they  died  in 
the  testator's  litetinic,  his  other  nephews  and  nieces  and  their 
children  would  have  become  entitled  in  a  similar  manner. 

A  testator  be(iucathed  (JOOO/.  in  trust  for  his  daughter,  lor  Jones  v.  To- 
hie;  and,  after  her  decease,  he  gave  the  same  to  the  ciiil-  rin,  fi  Sim. 
dren,  or  their  descendants,  of  T.  F.,  in  such  proportions  to  255. 
each  as  his  daughter  might  direct.     Sir  L.  Shadwell,  V.  C, 
held,  that  the  descendants  were  mentioned  merely  as  substi-  [  46   ] 

tutes  for  the  children  ;  and  that  the  children  were  entitled  to 
the  fund,  there  being  a  direct  gift  with  a  power  of  selec- 
tion. 
136  Sometimes  the  contingency  on  which  the  alter- The  ccntin- 

native  interest  is  to  arise,  is  implied  in  the  con-  gency  some- 
text.     And   this   would   appear  to   be   the  case,  where  a  times  implied 
fund   is  bequeatlied  in   trust  for   a   person  and  his  issue,  •"  t^c  con- 
with  a  direction  to  the  trustees  to  pay  over  to  such  person,  ^^'^^' 
the  corpus,  and  not  merely  the  interest  of  the  fund. 

A  testator  bequeathed  all  his  personal  property,  not  be-  Pearson  v. 
fore  disposed  of,  unto  iiis  trustees,  in  trust  for  his  five  sons,  Stephen,  2 
and  their  respective  issue,  (if  any,)  such  issue  to  take  per  Dow  & 
stirpes,  and  not  per  capita,  to  be  divided  amongst  them  in  Clark,  328. 
equal  shares  and  proportions  :  the  shares  of  such  of  them  as 
should  have  attained  twenty-one,  to  be  paid  to  them  re- 
spectively forthwith  after  his  decease,  and  the  shares  of 
such  of  them  as  should  be  under  the  age  of  twenty-one 
years,  to  be  paid  to  them  when  and  as  they  should  re- 
spectively attain  such  age.  At  the  date  of  the  will,  and  of 
the  testator's  death,  the  eldest  son  was  married  and  had 
four  children.  Tlie  other  sons  were  unmarried.  The  JNIas- 
ter  of  the  Rolls  held,  that  each  of  the  sons  was  entitled  to  a 
fifth  for  life  only,  remainder  to  his  issue,  to  be  paid  to  them 
at  twenty-one.  This  judgment  was  reversed  by  the  House 
of  Lords,  by  whom  it  was  decided,  that  this  was  "an  abso- 
lute gift  to  the  testator's  five  sons,  to  be  paid,  at  the  time 
and  in  the  manner  specified,  to  the  testator's  sons  living  at 
the  time  of  his  decease;  but  if  any  of  the  said  sons  was  at 
that  time  dead,  then,  to  go  to  the  issue  of  that  son :  such 
issue  to  take  as  the  stirpes  would,  and  not  on  a  division 
per  capital  The  Lord  Chancellor,  in  proposing  that  deci- 
sion, relied  on  the  case  of  Butter  v,  Ommaney,  4  Russ.  70  ; 
and  he  observed,  that  there  was  no  making  sense  of  the  will, 
unless  it  was  so  construed  ;  and  it  was  evident,  that,  in  the 
hurry  of  the  last  day  of  the  sittings,  the  attention  of  the 


[  46  ]  I.  4.  viii.]  AN  ORIGINAL  VIEW  [§136a. 

Master  of  the  Rolls  had  not  been  fully  drawn  to  the  terms  of 
the  will. 
Observations  It  is  not  stated  in  tlie  Report  in  what  way  Ilis  Lordship 
on  Pearson  showed  that  this  construction  was  required  by  the  terms  of 
V.  IStcphou  the  will ;  but  it  may  be  remarked,  that  it  appears  from  the 
r  47  ]  words  of  the  decision,  as  above  cited,  that  the  word  "them" 

was  considered  as  referring  to  the  sons,  being  connected 
with  the  word  "sons,"  though  the  word  "sons"  was  not  the 
next  antecedent,  by  the  word  "their;"  and  hence,  the  will 
was  to  be  constrned  as  directing  the  trustees  to  pay  over 
the  corpus  of  the  fund  to  the  sons  who  should  then  have  at- 
tained twenty-one.  Now  if  the  trustees  were  to  pay  over 
the  corpus  of  the  fund  to  the  sons  who  should  have  attained 
twenty-one,  it  would  be  utterly  repugnant  to  suppose  tiiat 
the  sons  so  receiving  the  capital,  and  not  merely  the  in- 
terest from  the  trustees,  should  only  have  been  intended  to 
take  for  life,  with  remainder  over  to  their  issue. 
Any  number      Any   number  of  alternative    interests    may  be  136a 

of  alternative  limited  in  succession,  so  that  each  more   remote 
interestsmay  limitation  may  be  simply  a  substitute  for  the  next  preceding 
be  limited  in  one. 

succession.         A  testator  bequeathed  a  sum  of  stock  to  trustees,  upon 
Lafer  v.        trust  for  his  wife,  for  life;    and  after  her  death,  to  pay  one 
Edu-ards,  3  third  part  of  the  principal  to  his  son,  J.  E.,\ihe  should  then 
Mad.  210.      be  living;  and  if  dead,  to  his  child  or  children;    and  one 
third  to  his  daughter,  M.  A.  E.,  if  living  at  the  decease  of 
his  wife;  and  if  dead,  to  her  child  or  children;  and  the 
remaining  third  to  his  daughter,  //.  E.,  or  her  child  or  chil- 
dren, in  the  same  manner.     Provided  always,  that  if  either 
of  his  said  daughters  should  die  unmarried  and  without 
issue;  then,  that  the  surviving  daughter  should  take   the 
share  of  her  so  dying;  and  if  both  of  his  daughters  should 
die  unmarried  and  without  issue,  then,  their  shares  should 
go  to  his  son,  J.  E.,  if  living ;  and  if  dead,  to  his  children. 
L.  E.,  tlie  testator's  wife,  died  in  his  lifetime,  but  the  sou 
and  daughters  survived  him.     Sir  John  Leach,  V.  C,  held, 
that  in  the  events  that  had  ha|)pened,  the  interests  of  the 
daughters  vested  in  them  absolutely.     That  the  deaths  of 
the  daughters  unmarried  and   without  issue,  was  plainly 
referable  to  their  deaths  in  the  lifetime  of  the  wife.     That 
the  only  contingency  in  favour  of  their  issue,  was,  the  chance 
of  their  deaths  in  the  lifetime  of  the  wife. 
Observa'ions      In  this  case,  there  was  a  succession  of  alternative  limita- 
on  Laffer  v.  lions,  as  to  the  shares  of  the  daughters,  by  means  of  which 
Edwards.      the  children  of  each  of  the  daughters  were  substituted  for 
their  parent,  in  case  the  parent  was  not  living  at  the  death 
r  48  ]  of  the  wife  ;  the  surviving  daughter,  for  the  daughter  who 

might  happen  to  die  without  issue  in  the  lifetime  of  the  wife; 
the  son,  for  the  daughters  and  their  children,  in  case  neither 


I.  4.  ix.]    OF  EXECUTORY  INTERESTS.  [§137—110.  [  4S  ] 

of  tlie  daugiitors  and  none  of  llieir  cliildreii  wore  liviii£^  at 
llic  death  of  the  wife  ;  and  llie  cliildren  of  ihe  son,  for  llie 
son,  in  case  he  should  not  be  hving  at  the  death  of  the  wife. 
As  the  daughters  were  hving  at  the  death  of  the  wife,  the 
limitation  to  them  took  eirect,and  the  shares  vested  in  them 
absolutely,  so  that  all  the  subsequent  limitations,  being  mere 
alternative  limitations,  entirely  failed. 

SECTION  THE  NINTH. 
Of  ^Jingmentittive  Limitations. 

137  An  augmentative  limitation,  in  the  case  of  real  Definition  of 
estate,  (or  a  limitation  causing  "an  enlargement  of  an  augmen- 

an  estate  upon  a  condition,")  is  ^a  limitation,  by  deed  at  tative  limita- 
eonmion  law,  under  which  a  term  for  years  previously  ere-  tion, 
ated  in  things  that  lie  in  livery,  or  a  term  for  years  in  things 
that  lie  in  grant,  or  a  preceding  estate  for  life  or  in  tail,  cre- 
ated by  the  instrument  containing  such  limitation,  is,  in  a 
given  event,  to  be  absorbed  by,  or  transmuted  into,  a  larger 
estate,  of  the  same  quality,  in  case  such  preceding  estate 
remains  unaliened,  and  unchanged  in  quality,  till  the  fulfil- 
ment of  the  condition. («) 

138  Thus  "a  man,"  says  Lord  Coke,  ''"maketh  a  Illustrations 
lease  for  years,  the  lessee  enters,  and  the  lessor  of  the  defi- 

makes  a  charter  to  the  lessee,  and  thereby  doth  grant  unto  nition. 
liim,  that,  if  he  pay  the  lessor,  a  hundred  marks  during  the 
term,  that  then  he  shall  have  and  hold  the  lands  to  him  aud^ 
to  his  heirs.  In  this  case,  say  they,  there  need  no  livery  of 
seisin,  but  it  doth  enure  as  an  executory  grant,  by  increasing 
of  the  state  ;  and,  in  that  case,  without  question,  the  fee  sim- 
ple passeth  not  before  the  condition  is  performed. "(6)  In 
the  case  here  put,  the  livery  of  seisin  appears  to  be  dispensed  [  '^^  ] 

with  ex  necessitate.  It  was  not  made  before  the  lessee 
entered ;  because  when  the  lease  was  made,  it  was  not,  or 
might  not  have  been  intended,  at  that  time,  that  the  lessee 
should  have  any  other  interest  than  his  term.  And  if  livery 
were  made  at  the  time  of  the  subsequent  grant,  Mt 

139  would  be  void  ;  because  the  lessee  would  be  al- 
ready in  possession. (c)     But  ^if  a  lease  for  years 

is  made  of  land  or  any  thing  else  lying  in  livery,  with  a  simi- 
lar condition  contained  in  one  and  the  same  instrument, 
instead  of  a   subsequent  instrument;    the    lessee 
110  must  take  the  fee  immediately,  or  not  at  all. (of) 


*  See  §114,  note  *. 

(o)  See  Co.  Liu.  21Ga— 217  b.  Prest.  Shop.  T.  128, 129.    Fcarnc,  265,206, 
279,  280,  339.  (*)  Co.  LiU.  217  b. 

(c)  See  Co.  Litt.  210  a.  (</)  See  Co.  Lut.  217  b. 


[  49   ]  I.  4.  X.] 


AN  ORIGINAL  VIEW         [§141—147. 


For,  «if  livery  is  made  before  the  lessee  enters,  the  fee 
passes  iminediateIy,,so  that  tlie  condition  must  be  construed 

See §12, 13.  a  condition  subsequent  instead  of  a  condition  pre- 

cedent:(<')  for  f*' livery  of  seisin  must  pass  a  pre-  141 

sent  freehold  to  some  person,  and  cannot  give  a 
freehold  in  fuha'o.'^(f)   And  if  livery  were  made  142 

K after  the  lessee  had  entered,  and  when  he  was 
already  in  possession,  it  would  be  void.(^)     And  143 

'"'  it  is  inconvenient,"  as  Lord  Coke  observes,  "  that 
the  fee  simple  should  pass,  in  this  case,  without  livery  of 
seisin  ;"(/j)  because  this  would  be  unnecessarily  opening  a 
door  to  the  dispensing  with  livery  of  seisin  altogether,  and 
to  the  mischiefs  that  would  arise  from  the  absence 
of  that  ceremony.     In  the  preceding  case,  the  fee  144 

could  not  pass  at  all  unless  livery  of  seisin  were 
dispensed  with  ;  whereas,  in  this  case,  it  could  pass  by  livery 
of  seisin  ;  though  it  is  in  such  case  necessary  to  construe  the 
condition  a  condition  subsequent,  instead  of  a  con- 
dition precedent,  so  as  to  allow  the  fee  to  pass  im-  145 
mediately.     But  it  is  to  be  observed,  that  there  is 
'"a  diversitie  between  a  lease  for  life  and  a  lease  for  years. 
For,  in  the  case  of  a  lease  for  life,  with  such  a  condition  to 
have  fee,  the  fee  simple  passeth  not  before  the  performance 
of  the  condition  ;  for  that  the  livery  may  presently 
work  upon  the  freehold.     Also  they  take  a  diver-  146 
sitie  between   inheritances  that  lie  in  grant  and 
inheritances  that  lie  in  livery.    For  they  agree,  that  if  a  man 

[  50  ]  grant  an  advowson  for  years,  upon  condition  that  if  the 

grantee  pay  twenty  shilUngs,  &c.,  within  the  term,  that  then 
he  shall  have  fee,  the  grantee  shall  not  have  fee  until  the 
condition  be  performed. "(?) 


SECTION    THE   TENTH. 

Of  Dirmnuent  Limitations. 

What  is  here  termed  a  diminuent  limitation  is  147 

a  clause  by  which  it  is  provided,  whether  in  a  deed 
at  common  law,  or  by  way  of  use  or  devise,  that,  in  a  par- 
ticular event,  an  interest  previously  given  by  the  same  in- 
See  \  149a,  strument,  shall  be  transmuted  into  one  of  a  lower  denomina- 
158_  tioii.     As  "where  a  man  makes  a  lease  for  life,  and  if  the 

lessee  within  one  year  pay  not  20/.,  that  he  shall  have  but  a 
term  for  two  years. (a) 


See  §  114, 
note  *. 
Definition 
of  a  dimi- 
nuent limita 
tion. 


(e)  Sec  Co.  Litt.  216  b.  (/)  Co. 

(^)  See  Co.  Litt.  216  a.  \h)  lb, 

(i)  Co.  Liu.  217  b. 
(u)  Co.  Litt.  218  h.',  Shep.  T.  129. 


Liu.  217  a. 


I.  4.  xi.]     OF  EXECUTORY  INTERESTS.    [§148,  149.  [  50  ] 


SECTION  THE  ELEVENTH. 

Of  Conditional  Limitations. 

148  ''The  term  conditional  limitation  is  sometimes  Generic 
used  generically  to  denote  any  kind  of  qualified  sense  of  the 

limitation  in  the  derivative  sense;  any  kirtd  of  limitation,  in  term  condi- 
tlie  derivative  sense,  which  depends  upon  a  condition,  in  tjonal  limita- 
contradistinction  to  an  absolute  limitation  \{h)  or  to  denote  ''<^"- 
'an  indirect  special  limitation,  in  contradistinction  to  a  direct  See§24,106- 
special  limitaiion.(r)  See  \  34,  42. 

This  use  of  the  term,  though  philologically  correct  enough,  The  use  of 
is  practically  productive  of  a  great  and  mischievous  confu-  the  term  in 
sion  of  ideas.     In  particular,  special  limitations,  in  the  origi-  this  sense  is 
nal  sense  of  limits,  arc  confounded  with  conditional  limita-  notincorrect, 
tions,  in  the  derivative  sense,  ''specifically  so  called,  or,  in  [  51  ] 

other  words,  with  that  kind  of  limitations,  which,  in  contra-  but  yet  pro- 
distinction  to  remainders,  operate  in  defeasance  of  a  preced-  ductive  of 
ing  estate,  and  which  are  accurately  distinguished  from  re-  mischief, 
mainders  by  the  learned  and  profound  author  of  the  forego-  See  §24,  34- 
ing  work.(^)    The  mode  of  determining  an  estate  by  means  42. 
of  a  special  limitation  is  not  peculiar  to  conveyances  by  way  See  §  149. 
of  use  and  devises,  as  we  shall  presently  see ;  but  the  mode 
of  determining  a  preceding  estate  by  means  of  a  conditional 
limitation,  specifically  so  called,  is  peculiar  to  uses  and  de-  See  §  149a. 
vises. 

149  A  conditional  limitation,  in  the  specific  sense,  is  a  Definition  of 
'proviso, by  way  of  use  or  devise, for  the  annihilation  a  conditional 

of  an  interest  of  the  measure  of  freehold  under  a  preceding  limitation,  in 
limitation,  in  a  particular  event  which  is  unconnected  with  the  specific 
the  original  quantity  of  that  interest, (e)  and  which  may  not  sense  ofthe 
happen  till  after  such  interest  has  become  vested  ;  and  for  term, 
the  creation  of  a  new  interest  in  its  stead,  in  favour  of  ano- 
ther person.     Or,  more  fully,  it  is  a  distinct  clause,  '"by  way 
of  use  or  devise, (/)  by  which  an  interest  is  limited  to  take 
effect,  in  possession,  or  in  enjoyment,  or  in  both,  on  or  at  a 
particular  time  or  event,  in  defeasance  and  exclusion  of  and 
by  way  of  substitution  for  an  interest  of  the  measure  of  free- 


(b)  See  Holmes  v.  Cradock,  3  Vcs.  Jun,  319;  Toldcrvy  v.  Colt,  1  You.  & 
Col.  631  ;  Prcst.  Shop.  T.  117  ;  Fcarne,  14,  17,  18. 

(c)  Sec  Fearne,  272. 
{d)  See  Fearne,  15,  16. 

(c)  See  Fearne,  10,  note  (/<),  and  14 — 16.  And  see  Lloyd  v.  Carew,  Free. 
Chan.  72  ;  Show.  Cases  Pari.  137  ;  as  stated,  Fearne,  275  ;  Pells  v.  Brown, 
Cro.  Jac.  590 ;  Hanbury  v.  Cockerell,  1  Roll.  Abr.  835,  pi,  4  ;  Gulliver  v. 
Wickett,  1  Wils.  105  ;  and  Marks  v,  Marks,  10  Mod.  420;  as  stated,  Fearne, 
896,  399. 

(/)  See  Prest.  Shcp.  T.  121,  126,  127. 
Vol..   II.— G 


[  "^l  1 


I.  4.  xi.] 


AN   ORIGINAL  VIEW      [§149*~15l. 


[   52  1 

Racksf7'aiv 
v.F//e,lSim. 
&  Stu.  604. 


Conditional 
linutations 
must  be 
really  limit- 
ed in  defea- 
sance of  a 
prior  inter- 
est. 

Conditional 
limitation 
can  only  be 
by  way  of 
iiseor  devise 

Conditional 
limitations 
termed  shift' 
ing  and 
springing 
uses  and 
executory 
devises. 
Reason  of 
the  term 
"  conditiona 


hold  aivoii  by  a  previous  sentence,  at  a  period  when  such 
prior  interest  may  have  become  vested  even  in  enjoyment, 
and  before  such  jirior  interest  has  lasted  the  full  measure  of 
duration  assigned  to  it  by  such  preceding  sentence,  either  in 
express  terms  or  by  construction  of  law.  As  where  an 
estate  is  devised  to  j1.  for  life,  or  to  ^^.  indefinitely,  provided 
that  when  C.  returns  from  Rome,  it  shall  then  immediately 
go  to  B.  and  liis  heirs;  or,  where  land  is  granted,  to  ^.  and 
his  heirs,  to  the  use  of  B.  and  his  heirs;  but  in  case  &c.,  then 
immediately  to  the  use  of  C.  and  his  heirs. 

So,  where  a  testator  give  his  son  an  absolute  interest  in 
one  fourth  of  his  personal  estate :  but,  by  a  codocil,  he  di- 
rected that  his  son's  share  should  be  only  for  the  life  of  him- 
self and  his  wife,  provided  they  had  no  issue,  and,  at  their 
death,  it  should  become  part  of  the  residue.  Sir  John  Leach 
held,  that  the  son  took  in  the  first  instance  absolutely,  with 
a  good  limitation  over,  by  way  of  executory  devise,  at  the 
death  of  the  survivor  of  hitiiself  and  wife,  if  there  be  no 
issue  then  living ;  the  failure  of  issue  being  plainly  con- 
fined to  the  death  of  the  survivor,  by  the  direction  that  the 
share  of  the  son  was  to  become  part  of  the  residue  at  their 
death. 

Before  we  determine  that  a  limitation  is  a  condi-  149* 
tional  limitation,  we  must  observe  whether  it  is 
really  and  in  fact,  and  not  merely  apparently  or  in  terms, 
limited  to  take  effect  in  defeasance  of  a  prior  interest.  For, 
e  though  apparently  or  in  terms  it  may  be  limited  to  take 
effect  in  defeasance  of  a  prior  interest,  yet,  if  in  reality  it  is 
to  await  the  regular  expiration  of  such  prior  interest,  it  is  a 
remainder,  and  not  a  conditional  limitation. (^'•) 

These  limitations  can  only  be  by  way  of  use  or         149a 
devise.     They  would  be  void  if  inserted  in  a  deed 
at  common  law,  being  foreign  to  the  simplicity  of  the  con- 
veyances employed  before   uses  and  devises  were   intro- 
duced. 

When  these  limitations  are  by  way  of  use,  they  150 

are  sometimes  called  shifting  uses,  and  sometimes 
sj)ringing  uses.     Those  which  are  by  devise  are  usually  de- 
signated by  the  generic  name  of  executory  devises. 

''These  limitations  partake  of  the  destructive  na-  151 

ture  of  conditions  subsequent,  and  the  creative  na- 
ture of  limitations  in  the  derivative  sense,     (See  §12, 105 — 6.) 
And  hence  they  are  appropriately  termed  conditional  limita- 
tions.(A) 

1  limitation." 


(g)  See  Driver  6.  Edgar  v.  Edgar,  Cowp.  Rop.  379  ;  and  Fountain  v.  Gooch, 
as  staled  and  commented  on,  Fearne,  426 — 428. 
(/*)  See  Hiiller's  note  (1),  Co.  Litf.  208  b, 


I.  4.  xi.J    OF  EXECUTORY  INTERESTS.  [§152—157.  [  52  ] 

158  So  far  as  regards  the  applicability  of  the  term  it  is  not  ex- 

"  springing  interests,"  interests  under  conditional  porjipiit  to 
litnilations  may  indeed  with  strict  propriety  be  termed  spring-  extend  tiio 
ing  interests.     But  it  will  appear  from  many  parts  of  the  [  53  ] 

present  Essay  to  be  of  great  importance,  liotli  theoretically  term  .spring- 
and  practically,  to  confuie  the  term  springing  interests  to  i"g  intc-rests, 
those  interests   which  do  not  affect  a  prior  interest  of  the  f^' '"f'-'i'c'^'s 
measure  of  freehold.  ""^f*  f-^»"^'- 

153  In  elucidation  of  the  foregoing  definitions,  it  ^'o"'"^'  Imni- 
may  be  observed,  that,—  ations. 

1.  By  creating  a  new  estate,  conditional  limitations  differ  Conditional 
from  conditions  subsequent;  from  clauses  of  cesser  and  ac-  limitations  in 
celeralion;  and  from  special  or  collateral  limitations  in  the  f^'cnera   dis- 
original  sense  of  limits.     (§  12,  22,  34—42.)  tinguishcd 

154  2.  By  constituting  a  distinct  clause  or  proviso   .'^"'"  ^'^""" 
for  the  cesser  ot  a  prior  mterest  m  an  event  uncon- 

nected  with  the  ongnial  measure  of  that  mterest,  they  diner  p^.^j^  clauses 
from  special  or  collateral  limitations  in  another  respect.  (See  ofcesser  and 

V  ■^"•)  ,  acceleration; 

155  3.  By  taking  effect  in  defeasance  of  an  interest  andfromspe- 
of  the  measure  of  freehold  under  a  preceding  limit-  cial  or  roll.i- 

ation,  they  differ  not  only  from  remainders,  as  we  shall  see  teral  limit- 
hereafter,  but  also  from  the  several  kinds  of  springing  into-  ations; 
rests  which  do  not  affect  any  prior  interest  at  all,  or  none  —  from  re- 
but a  prior  chattel  interest.     (See  §  159,  117 — 127b,  2G2 —  maindors, 
280.)  'I'ltl  limita- 

156  A  hmitation  of  a  springing  interest  operates  upon  ^'^'^'^  ^f 
the  estate  remaining  in  the  grantor  or  his  heir,  or  springing 

in  the  heir  of  the  testator,  in  the  same  way  as  a  conditional  interests; 
limitation  operates  upon  the  prior  estate  which  is  liable  to 
be  defeated  by  it.  The  limitation  of  a  springing  interest 
operates  by  devesting  the  estate  from  the  grantor  or  liis  heir, 
in  a  particular  event,  entirely  irrespective  of  the  original 
measure  of  that  estate,  and  by  transferring  it  to  the  person 
who  is  to  take  the  springing  interest.  A  conditional  limita- 
tion operates  by  devesting  the  estate  from  the  person  entitled 
under  the  prior  estate,  in  a  particular  event  which  is  quite 
iniconnected  with  the  original  and  regular  duration  of  that 
estate,  and  by  transferring  it  to  the  person  who  is  to  take 
under  the  conditional  limitation.  The  difference  is,  that  the 
estate  devested,  is,  in  the  one  case,  an  estate  remaining  in 
the  grantor  or  his  heir  or  the  heir  of  the  testator ;  whereas, 
in  the  other,  it  is  an  estate  created  by  a  previous  clause  of 
the  instrument  by  which  the  interest  was  limited,  which  is 
to  take  effect  in  defeasance  of  it. 

157  4.  By  being  capable  of  taking  effect  in  annihila-  —  iVom  al- 
tion  or  defeasance  of  another  interest  which  has  [  54   ] 

become  vested,  they  also  widely  differ  from  alternative  limit-  ternative  li- 
ations.     (§128.)  mitaiions; 


[  54  ]  I.  4.  xii.]  AN  ORIGINAL  VIEW       [§15S— 159a. 

and  from      5.  By  defeating  a  prior  interest  in  another  per-  158 

augmenta-      son,  by  way  of  use  or  devise  only,  even  where  they 
live  and  di-    substitute  a  greater  interest  for  a  less,  or  a  less  for  a  greater, 
minuent  lim-  they  are  dissimilar  to  augmentative  and  dimiuuent  limita- 
itations.  tions.     (§  137,  147.) 


SECTION  THE  TWELFTH. 

Of  Remainders  J* 

La.K  sense  of     The  terra  remainder  is  sometimes  used  in  a  lax  159 

the  term  re-  sense,  to  denote  any  kind  of  subsequent  interest, 
mainder.        or  the  limitation  thereof.     But  a  limitation  of  a  remainder, 
Definition  of  strictly  so  called,  is  a  clause  creating  or  transferring  an  estate 
a  limitation    or  interest  "in  lands  or  tenements, («)  which  is  limited,  either 
of  a  remain-  directly  or  indirectly,  to  take  effect  in  possession,  or  in  en- 
der,  properly  joyment,  or  in  both,  subject  only  to  any  term  of  years  or 
so  called.       contingent  interest  that  may  intervene,  ^immediately  after 
the  regular  expiration(6)  of  a  particular  estate  of  freehold 
previously  created  together  with  it,  "^by  the  same  instru- 
ment,(c)  out  of  the  same  subject  of  property. 
Remainders       In   elucidation   of  this   definition,  it  may   be  observed, 
in  general      that 

distinguished      j.  A  remainder  is  above  described  as  an  estate         159a 

from  other     q^  interest  in  lands  or  tenements,  because  "  in  per- 

clauses.  sonal  property,  under  which  both  chattels  real  and  personal 

Remainders   a.re  included,  there  cannot  be  a  remainder  in  the  strict  sense 

distinguished  ^f  ^^^y  word ;   and  therefore  every  future  bequest  of  per- 

from  future    gonal  property,  whether  it  be  preceded  or  not  preceded  by  a 

bequests.        prior  bequest,  or  limited  on  a  certain  or  uncertain  event,  is 

See  §  168a,   an  executory  bequest,  and  falls  under  the  rules  by  which 

168b.  that  mode  of  limitation  is  regulated, "(f/)    And  if  such  future 

[  55  ]  bequest  is  preceded  by,  and  is  to  take  effect  in  defeasance 

See  §  148-     of,  a  prior  bequest;  it  is  a  conditional  limitation.     But,  if 

152.  such  future  bequest  is  not  preceded  by  a  prior  bequest ;  or 

if  it  is  preceded  by  a  prior  bequest,  but  yet  it  does  not  affect 

See  §  117.     such  prior  bequest;  it  is  a  limitation  of  a  springing  interest. 

An  exception  occurs,  liovvever,  in  those  cases  where  a 

future  bequest  is  analogous  to  a  vested  remainder  in  real 

estate  ;  in  which  cases,  though  it  is  executory  as  regards  the 


*The  term  remainder  is  indiscriminately  applied  both  to  the  limitation  creating 
and  the  interest  created. 

(a)  See  Lord  Coke's  definition  quoted,  Fcarne,  3,  note  (r). 

(6)  See  Prest.  Shep.  T.  128,  and  Fearne,  10,  note  (/*),  and  14—16.  ^ 

(c)  P^earne,  3,  note  (c);  and  Snow  v.  Cvtller,  or  Tucker,  1  Lev.  1S5;  and 
Doe  d.  Fonnercau  v,  Fonnereav,  Dougl.  Rep.  470  ;  as  slated,  Fearne,  302,  3J3. 

(d)  Fearne,  401,  note  (c);  and  see  lb.  3,  note  (c),  2. 


I.  1.  xii.J     OF  EXECUTORY  INTERESTS.  [§lGO,l«n.  [55] 

possession,  it  is  not  an  executory  bequest,  as  regards  the  See  §46, 87, 
l)roperty  or  owneisl)i[),  but  confers  a  vested  interest,  and  90. 
may  for  convenience  be  termed  a  vested  quasi  remainder,  g^c  §  16^. 
And  a  future   bequest  which  is  analogous  to  a  contingent 
remainder  in  real  estate,  though  strictly  and  properly  an 
(executory  bequest  of  a  springing  interest,  as  regards  the 
j)ropcrty  or  ownership,  may  for  convenience  be  termed  a 
contingent  (jiiasi  remainder. 

Another  exception  occurs  in  cases  of  1  imitations  of  present  Sce§  11  If. 
vested  interests,  subject  to  a  prior  chattel  interest  of  uncer- 
tain duration,  in  which  cases,  tlie  bequest,  though  execiUory 
as  regards  the  possession  or  enjoyment,  or  both,  is  not 
executory  as  regards  the  property  or  ownership,  but  is  an 
inmiediate  bequest,  a  limitation  in  prxseiiti. 

And  a  third  excei)tion  occurs  in  cases  of  limitations  of  Sec  ^  Hlg- 
present  vested  interests,  where  there  is  a  mere  postponement 
of  the  possession,  or  enjoyment,  or  both,  and  not  a  post- 
ponement of  the  property  or  ownership,  till  a  future  time 
(such  as  the  attaimnent  of  majority)  other  than  that  of  the 

determination  of  a  prior  interest. 
160  2.   A  remainder  is  above  described  as  Hmited  to  Remainders 

take  ellcct,  in  possession,  or  in  enjoyment,  or  in  distinguished 
both,  after  the  regular  expiration  of  another  estate.     For,  from  condi- 
a   vested    reiuainder  has  already    taken  effect  in  right  or  tional  linii- 
interest  ;  and  therefore  it  lias  only  to  take  effect  in  pos-  taiions. 
session    or   enjoyment,  or    in    possession  and    enjoyment. 
And  a  contingent  remainder  must,  in  many  cases,  take  ef- 
fect in  interest,  if  at  all,  before  the  expiration  of  the  particu- 
lar estate.     But,  as  regards  the  possession  or  enjoyment,  or 
both,  a  remainder,  whether  vested  or  contingent,  can  only 
take  effect,  except  by  the  operation  of  merger,  after  the  ex- 
piration of  the  particular  estate;  because,  it  would  other- 
wise be  something  more  than  a  mere  residue  or  remnant  of 
the  seisin,  property,  or  ownership.     In  this  respect  a  limita-  [  56  ] 

tion  of  a  remainder  ditfers  most  essentially  from  a  condi- 
tional limitation.  A  conditional  limitation,  as  stated  in  the  See  §  148-9, 
second  of  the  foregoing  definitions  thereof,  operates  in  de-  :i6ti.280. 
feasance  and  exclusion  of  a  prior  interest :  whereas,  there 
is  no  instance  in  which  a  remainder  operates  in  exclusion  of 
a  prior  interest,  either  by  force  of  the  limitation  itself,  or  by 
construction  of  law.  For,  even  ^"in  those  cases  in  which  it 
absorbs  the  particular  estate,  by  the  operation  of  merger,  it 
in  effect  only  removes  the  limits  of  the  particular  estate  so 

as  to  expand  it  into  a  greater  estate.(f) 
161  3.  As  taking  elfect  after  the  expiration  of  an-  Remainders 

other  estate,  a  remainder  is  diametrically  opposed  distinguished 
to  an  alternative  limitation.     (See  §  128,  63S— 649.)  from  ulter- 

- ■ — -  native  limi- 

{(■)  Fearnc,  265— 9.  tations  ; 


[56]  I.  4.  xii.]  AN   ORIGINAL  VIEW        [§lff2— 165. 

—  from  the        4.  As  taking  effect  immediately  after  the  regular  163 

firstsix  kinds  expiration  of  an  estate  of  freehold,  a  remainder  is 

of  limitations  the  reverse  of  the  first  six  kinds  of  limitations  of  spring- 

of  springing    i„g  interests. 

interests;  "5    j„  some  cases  a  remainder  may  bear  a  close  163 

from  aug- resemblance  to  an  augmentative  limitation;  for  a 

mentativc  V\-  remainder  may  Ije  given  to  the  same  person  to  whom  the 
mitations.  particular  estate  is  limited,  though  usually  it  is  not  ;  and  it 
Sec  §  137.  may  be,  and  in  fact  generally  is,  of  tlie  same  quality  as  the 
particular  estate.  But  as  directly  or  indirectly  Ihni/cd  to 
lake  effect  in  possession  af/er  thej^egular  expiration  of  the 
particular  estate,  remainders  invariably  differ  from  aug- 
mentative limitations,  under  which  a  particular  interest  is 
either  to  be  absorbed  by,  or,  in  case  it  is  an  estate  tail,  to  be 
transmuted  into,  a  larger  estate,  before  the  time  of  its  regu- 
lar expiration,  and  by  the  terms  of  the  limitation  itself,  A 
remainder  may  indeed  take  eifect  in  possession  before  the 
regular  expiration  of  the  particular  estate,  in  cases  where  a 
particular  estate  and  a  vested  remainder  are  limited  to  the 
same  person,  and  either  are,  by  original  limitation,  or  be- 
come eventually,  of  the  same  quality.  Thus,  if  land  be 
limited  to  Jl.  for  life,  remainder  to  him  and  his  heirs  in  a 
particular  event,  as  soon  as  such  event  happens,  and  the  re- 
mainder vests  in  interest,  the  estate  for  life  immediately 
merges  in  it,  and  the  remainder  becomes  an  estate  in  posses- 
sion, before  the  regular  expiration  of  the  estate  for  life.  And 
[  57  ]  so,  ""if  a  lease  be  made  to  two  for  life,  remainder,  after  the 

decease  of  one  of  them,  to  the  survivor  in  fee,  the  particu- 
lar estate  becomes,  on  the  decease  of  one  of  them,  an  estate 
of  the  same  quality  as  the  remainder,  that  is,  a  sole  es- 
tate;  and  being  also  in  the  same  person,  it  immediately 
merges  in  the  remainder,  which  then  becomes  an  estate  in 
possession,  before  the  regular  expiration  of  the  particular  es- 
tate ;  that  is,  before  the  decease  of  the  survivor.(/)  But 
this  acceleration  of  the  subsequent  estate  does  not  take  place 
by  force  of  the  limitation  itself,  but  by  a  rule  of  law  affect- 
ing such  limitations,  by  giving  rise  to  the  operation  of 
merger  in  the  case  of  estates  so  situated, 
Rrmaindcrs        6,  The  same  words  also  distinguish  a  limitation  164 

distinguished  of  a  remainder  from  a  dirainuent  limitation.     (See 
from  dimi-      ^147) 

nucnt  limi-         7.  A  remainder,  as  tiie  word  itself  imports,  is  165 

tations ;  always  limited  after  a  particular  estate.    And  sany 

from  the   preceding  estate  for  life   or  in  tail  is  termed  a  particular 

seventh  kind  estate  ',{g)  but  the  term  is  not  applied  to  any  estate  in  fee, 

(/)  See  Fearne,  265;  and    Goodlillc  v.    Billington,  Dougl.  Rep.  725,  or 
735  ed,  3  ;  as  stated.  Fearne,  260. 
(§•)  Fearne,  381,  note  {n),l. 


I.  4.  xiii.]    OF  EXECUTORY  INTERESTS.  [§1G7,  IGS.  [  57  ] 

however  limitecl.     Hence,  though,  as  wo  have  seen,  a  fee  of  limitaiinns 
or  other  less  estate  may  he  hniited  to  take  ctiect  in  dt-feas-  of  springing 
ance  and  exclusion  of  a  i)rior  estate  in  fee,  by  way  of  dinji-  interests. 
nnent  limitation,  or  condiiit)nal  hmitation,or  nntler  a  power  Sfo  §  147, 
of  apj)()intment,  or  in  place  of  a  fee  which  has  never  vested,  14m-9,  115. 
by  way  of  alternative  limitation  ;  or  on  the  regular  expira-  See  §  128. 
tion  of  a  qualified  fee  by  means  of  a  limitation  of  a  spring- 
ing interest  of  the  seventh  kind  ;  yet,  no  estate  can  be  lirn-  See  §  r20, 
ited  by  way  of  remainder  on  the  regular  expiration  of  a  fee, 
even  though   it  may  l)e  only  a  qualified  fee  which  cannot 
last  longer  than  an  estate  tail.     So  that  ''if  an  estate  is  lim- 
it(!d,  even  by  way  of  use  or  devise,  to  A.  and  his  heirs,  while 
li.  or  any  issue  of  his  body  shall  be  in  existence;  and  after 
the  decease  of  B.  and  failure  of  his  issue  to  C  and  liis  heirs; 
or  if  an  estate  is  limited,  even  by  way  of  use  or  devise,  to  A. 
and  his  heirs,  while  he  and  his  heirs  shall  continue  lords  of  the 
manor  of  Dale;  and  if./?,  and  his  heirs  shall  cease  to  be  lords 
of  the  manor  of  Dale,  to  C.  and  his  heirs;  the  latter  limitation, 
in  each  case,  is  void. (/<)    For  the  common  law  considered  that  [  ^^  ] 

a  fee,  even  of  a  qualified  kind,  might  endure  for  ever;  so  that 
tFiere  could  be  no  remainder  after  it,  but  merely  a  possibility 
of  reverter.     And  no  interest  limited  after  the  regular  expi-  See  ^  G9. 
ration  of  such  fee  can  be  good  as  a  limitation  of  a  springing 
interest  of  the  seventh  kind,  because  it  would  be  too  remote.  See  §  126, 
And  'if  an  estate  is  limited  to  the  use  of  ^^.  and  his  heirs  till  706. 
C.  return  from  Rome;  and  after  the  return  of  6'.,  to  B.  in 
fee;  the  limitation   to  B.  is  not  a  remainder,  because  the 
preceding  fee  may  lose  its  determinable  quality  and  become 
absolute   by   the   decease   of  C.    without    returning   from 
Rome;(/)  but  it  is  good  as  a  limitation  of  a  springing  inter- 
est of  the  seventh  kind. 

167  S.  By  limiting  an  estate  after  a  particular  estate  Remainders 
created  by  the  same  instrument,  a  limitation  of  a  disdnguished 

remainder  is  distinguished  from  a  limitation  of  the  whole  or  from  limi- 
the  immediate  part  of  a  reversion.     (See  §  16D.)  tationsof  the 

whole  or  the 
immediate 

SECTION  THE  THIRTEENTH.  part  of  a  re- 

version. 

Of  Quasi  Remainders.  See  §  114, 

note  *. 

168  A  FUTURE   bequest,  which  is  analogous   to   a  Definition  of 
remainder  in  real  estate,  may  be  designated  by  -x  quasi  re- 

tliis  term.  mainder. 

We  have  ah-eady  seen  that,"  "  in  personal  property,  under  There  can- 
which  both  chattels  real  and  personal  are  included,  there  not  be  a  re- 

mainder  in 

(A)  Fearnc,  226,  note  {d);  and  Fearne,  372,  note  (a).  personal  pro- 

(i)  Fearnc,  13,  note  (A*).  perty. 


[  5S  ]  I.  4.  xiii.]  AN  ORIGINAL  VIEW       [§16Sa,  IGSb. 

cannot  be  a  remainder  in  the  strict  sense  of  that  word. "(a) 
(See  §  159a.) 
Chattels  real      ^^  ^^  chattels  real,  a  term  for  years  is  liable  to  168a 

may  now  be  destruction  by  certain  legal  means ;  and  therefore, 
limited  over  ^^  "^'^  interest  is  first  limited  for  such  a  number  of  years  of 
but  a  limita-  the  term  as  not  to  exhaust  the  whole  duration  of  the  term, 
tion  over  is  though,  in  this  case,  there  is  a  remaining  portion  of  the 
not  a  remain-  term,  or  the  beneficial  interest  therein,  or  both,  to  constitute 
der,  strictly  a  remainder  at  the  period  of  limitation  ;  yet  the  term  may 
so  called,  liave  ceased  to  exist  long  before  a  future  interest  can  take 
[  59  ]  effect.     Whereas,  in  the  case  of  lands  or  tenements,  the  sub- 

though  it  ject  of  property  remains  for  ever;  and  tlie  property  or  own- 
may  be  ana-  ership  which  may  be  had  therein,  is  commensurate  with  the 
logoustoone.  duration  of  the  lands  or  tenements  themselves. 

Besides  this,  terms  for  years  were  originally  of  short  du- 
ration, created   for  agricultural  purposes,  rather  than  for 
purposes  of  complicated  family  arrangements.     And  ''hence 
not  only  could  there  be  no  remainder  iu  them,  but  "it  was 
once  considered  that  they  were  incapable  of  any  limitation 
over."(6)     ]3ut  '•'now  an  interest  after  an  interest  for  life  or 
otherwise  in  a  term  may  be  limited,  as  a  legal  interest,  by 
way  of  devise  or  bequest,  or  as  an  equitable  interest,  either 
by  way  of  devise  or  bequest,  or  by  way  of  trust.(c) 
The  same  is       And  as  regards  chattels  personal,  in  the  very  na-         1 68b 
the  case  with  ture  of  things,  in  order  that  there  may  be  room  for 
chattels  per-  a  remainder,  at  least  for  a  vested  remainder,  there  must  be 
sonal.  some  portion  of  the  ownership  remaining,  wliich  has  not 

been  previously  disposed  of.  But  in  the  case  of  chattels 
personal,  before  the  expiration  of  the  interest  first  limited  in 
them,  they  may  be  destroyed  or  lost  in  various  ways  inciden- 
tal to  their  own  nature,  and  unconnected  with  the  operation 
of  law.  And  the  duration  of  personal  chattels  being  alto- 
gether uncertain,  the  duration  of  the  property  or  ownership 
is  so  too.  And  hence  no  remainder  could  be  limited  in  them. 
Besides,  in  times  when  there  was  but  little  money  in  the 
country,  and  it  was  expedient  that  what  little  there  was, 
should  be  quickly  circulated,  and  chattels  personal  chiefly 
consisted  of  things  of  a  perishable  nature,  such  as  corn  and 
cattle ;  it  is  obvious  why  it  was  considered  that  no  remain- 
der could  be  limited  in  chattels  personal.  A  distinction, 
however,  was  afterwards  taken  '•between  a  bequest  of  the 
use  of  a  personal  thing  for  life,  and  a  bequest  of  the  thing 
itself;  it  being  considered  that  a  limitation  over  after  the 

(a)  Fearne,  401,  note  (e);  and  see  Ih.  3,  note  (c)  2. 

(b)  Fearne,  3,  note  (c),  2. 

(c)  Fearne,  402,  404,  413  ;  and  Manning^ s  Case,  8  Rep.  95  ;  Lampefs  Case, 
10  Rep.  47  ;  and  Cotton  v.  Heath,  1  Roll.  Abr.  G12,  pi.  3 ;  as  staled,  Fearne, 
402—3. 


I.  5.  i.]     OF  EXECUTORY  INTERESTS.    [§169,170.  [GO] 

former  was  good.((l)  And  subsequendy  it  has  been  held, 
that  an  interest  even  afteraUfe  interest  in  a  personal  chattel 
may  be  limited,  *"as  a  legal  interest,  by  way  of  bequest, (^) 
or,  'as  an  equitable  interest,  either  by  way  ot*  bequest(y") 
or  *''by  way  ol"  trust. (,^) 

SECTION  THE  FOURTEENTH. 

Of  Limitations  of  the  ir/ioie,  or  the  Immediate  Part  of  a  See  §  375- 
Reversion,  382. 

169  Li:\iiTATioNS  of  the  whole,  or  the  immediate  Definition  of 

part,  of  a  reversion,  are  limitations  of  an  entire  pre-  these  iimita- 
vionsly  subsisting  reversion,  or  of  a  part  of  it,  to  take  effect  iio"s  of  the 
in  possession,  sul)ject  only  to  atiy  term  for  years  or  contin-  reversion, 
gent  interest  that  may  intervene,  inunediately  after  the  reg- 
ular expiration  of  the  particular  estate  or  estates  of  freehold 
duration  created  by  a  previous  instrument  out  of  the  same 
subject  of  property. 


CHAPTER  THE  FIFTH.  [  6i  ] 

VESTED    AND    CONTIXGENT    REMAINDERS    DEFINED    AND    DIS- 
TINGUISHED. 


SECTION  THE  FIRST. 

Vested  and  Contingent  Itemainders  in  general  defined 
and  distinguished. 

170  Remainders  are  either  vested  or  contingent;  and  Throe nioiles 

each  of  these  two  kinds  may  be  defined  in  three  of  defining 

different  modes  :  vested  and 

I.  Without  reference  to  the  right  of  possession  or  enjoy-  contingent 

ment,  or  the  possession  or  enjoyment  itself  remainders. 

II.  With  reference  to.  the  right  of  possession  or  enjoy- 
ment. 

(J)  Fcarne,  403. 

(e)  See  Lord  Chancellor's  observations  in  Foley  v.  Burncll,  1  I3ro.  Chan.  Cas. 
274,  as  stated,  Fearne,  412;  and  Hoare  v.  Parker,  3  Diun.  &  East,  376,  as 
stated,  Fearne,  415.     But  sec  also,  contra,  Fearne,  413,  414. 

(/■)  Catchmay  v.  Nicholls,  and  Shirley  v.  Ferrers,  1  P.  W.  6,  in  note;  and 
Hyde  V.  Perratt,  1 .  P.  W.  1  ;  as  stated,  Fearne,  405 — 6. 

{g)  Cado^an  v.  Kennet,  Cowpcr,  432 ;  as  stated,  Fearne,  408. 
Vol.  il.— 7 


f  Gl  ]  I.  5.  i.]  AN  ORIGINAL  VIEW  [§171— 17G. 

Ill,  With   reference    to    the    possession    or    enjoyment 
itself. 
Vested  and         I.  A  vested  remainder,  if  defined  without  re-  171 

contingent  forencc  to  the  right  of  possession  or  enjoyment,  or 
remainders  the  possession  or  enjoyment  itself,  (which  is  perhaps  the 
defined  with-  niost  scientific  and  accurate  mode,)  may  be  defined  to  be,  a 
out  rclfi-ence  portion  of  the  seisin,  property,  or  ownership,  of  the  measure 
to  the  right  q^  freehold,  next  after  a  preceding  freehold  estate,  and  ac- 
ol  possession  tiijiiiy  acquired  by,  and  residing  in,  the  person  who  is  said 
or  enjo}-  ^^  have  such  vested  remainder.  (See  §  91.) 
mcnt,  or  the         .  \i        .1        i    ^j  -i -r. 

.A  contingent  remainder,  on  the  other  hand,  1  /2 

enbvment      "^'^^'  ^®  defined  to  be,  a  portion  of  the  seisin,  pro- 
itself  psi'ty,  or  ownership,  of  the  measure  of  freehold,  which  is 

See  ^  47-8.  "^-^^  after  a  preceding  freehold  estate,  and  is  not  yet  acquired 
by  the  person  who  is  said  to  have  such  contingent  remain- 
der, but  is  appointed,  by  the  terms  of  the  grant  or  devise, 
to  be  acquired  by,  and  to  reside  in  him,  in  a  contingent 
event. 
Vested  and        II.  A  vested  remainder,  if  defined  with  refer-  173 

contingent      ence  to  the  right  of  possession  or  enjoyment,  (which 
[  62  ]  is  the  mode  adopted  by  Fearne,)  may  be  defined  to  be,  one 

remainders  that  is  so  limited  to  a  person  in  being  and  ascertained,  that 
denned  with  (subject  to  any  such  chattel  or  other  interest  collateral  to  the 
reference  to  seisin,  property,  or  ownership,  as  extends  to  the  possession 
the  right  of  or  enjoyment)  it  is  capable  of  taking  effect,  in  possession  or 
possession  or  gj^JQymPDf^  q^  tj-^g  certain  determination  of  the  particular 

^"■^^{Tn^ri  estate,  without  requiring  the  concurrence  of  any  collateral 
bee^50,ol.pQj^jjj^„^jjpy_ 

A  contingent  remainder,  on  the  other  hand,  174 

is  one  that  is  so  limited  as  not  to  be  capable  of 
taking   effect  in   possession   or   enjoyment,  on  the  certain 
determination  of  the  particular  estate,  without  the  concur- 
rence of  some  collateral  contingency. 
Vested  and         III.  A  vested  remainder,  if  defined  with  refer-  175 

contingent  ence  to  the  possession  or  enjoyment  itself,  may  be 
remainders  defined  to  be,  a  remainder  which,  as  regards  the  possession 
defined  with  or  enjoyment,  or  both,  (subject  to  any  such  chattel  or  other 
rorercncc  to  interest  collateral  to  the  seisin,  property,  or  ownership,  as  ex- 
the  posses-  tends  to  the  possession  or  enjoyment,)  does  not  strictly  depend 
sion  or  enjoy-  q,^  ^^^y.  uncertainty  at  all,  or  any  other  uncertainty  than  that 
mcnt  itsell.     of  its  enduring  beyond  the  preceding  interest. 

A  contingent  remainder,  on  the  other  hand,  176 

is  one  which,  as  regards  the  possession  or  enjoy- 
ment, docs  strictly  depend  on  a  contingency  irrespective  of 
its  own  dn rat  ion. 


I.  5.  ii.J      OF  EXECUTORY  INTERESTS.    [§177— ISO.        [  <.J  J 


SECTION  THE  SECOND. 

The  Distinctions  bciiveen  Vested  and  Contins;c.nt  Remain- 
ders pointed  out,  with  Observations  thereon. 

Ill  I.  The  non-cxistcncc,  in  a  vested  remainder,  and  Distinction 

the  existence,  in  a  contingent  remainder,  of  a  con-  as  rcg.-irds; 
tingency  irrespective  of  its  own  dnration,  on  wliich  the  pos-  the  mode  of 
session  or  enjoyment  strictly  depends,  is  that  which  consti-  tli'.ir  cio- 
tntos  the  fiindainental  distinction  between  thcni,  as  regards  ptiuii,  form- 
the  mode  of  their  creation,  and  that  which  forms  a  true,  tan-  '"»  n  true 
gible,  and  practical  criterion  for  determining  to  which  of  the  cnicnon. 
two  species  a  remainder  belongs. 

II.  And  from  this  distinction  in  the  mode  of  their  creation,  Consequcn- 
two  others,  pertaining  to  their  nature  and  qualities,  ncces-  tiul  distinr- 
sarily  flow:  tiunspertain- 

178  1.  In  the  one  kind  of  remainder,  there  is,  while  [  G3  ] 
in  the  other,  there  is  not,  an  actually  acquired  por-  ing  to  their 

tion  of  the  seisin,  property,  or  ownership,  at  present,  fixed,  nature  and 
and  legally  transferrible  right,  and  a  present  capacity  (sub-  qualities. 
ject  to  any  such  chattel  or  other  interest  collateral  to  the  Sec  §  47-8. 
seisin,  property,  or  ownership,  as  extends  to  the  possession  ^^^  50,  ol. 
or  enjoyment)  of  taking  effect  in  possession  or  enjoyment  at 
any  moment  there  may  be  a  vacancy  during  the  continu- 
ance of  the  remainder,  without  requiring  the  concurrence  of 
any  collateral  contingency. 

179  2.  And  in  the  one  kind  of  remainder  (subject 
as  aforesaid)  there  is  a  certainty,  while,  in  the 

oilier,  there  is  an  uncertainty  of  the  possession  or  enjoyment 
itself,  apart  from  the  relative  uncertainty  of  its  own  dura- 
tion. 
ISO  It  is  not  the  indefeasibleness  of  the  right  of  pos-  It  is  not  the 

session  or  enjoyment,  or  the  absolute  certainty  of  indcfcasible- 
the   possession  or  erqoyment  itself,  which  distinguishes  a  ncss  of  ihe 
vested  from  a  contingent  remainder.     In  relation  to  tlie  in- right  of  pos- 
defeasibleness  of  the  right,  and  the  certainty  of  the  posses-  session  or 
sion  or  enjoyment  itself,  a  vested  remainder  may  be  uncer-  enjoyment, 
tain  as   well  as  a  contingent  remainder.     For,  if  land   is  ""'' tli« '^^so- 
limited  to  the  use  of./?,  for  life,  remainder  to  the  use  of  B.  hitccertamty 
for  life,  subject  to  a  power  of  revocation  and  new  appoint-  o'theposscs- 
ment,  the  remainder  is  vested  ;  because,  from  the  very  in-  ^"^"  *^^  ^"" 

stant  of  its  creation,  it  is  capable  of  taking  effect  in  posses-  -l^^l".^"  ,  .  , 
-  ^  '  ^  ^,          °        .  ^    .        itscll,  which 

sion  or  enjoyment  at  any  moment  the  possession  or  enjoy-   j  ,,•  „    ,,k„g 

ment  may  become  vacant  by  the  death  of  ./^.     -^^^^  V'^^  it      -psted  re- 
may  possibly  never  take  effect  in  possession  or  enjoyment,  ^iifji^jcr 
because  B.  may  die   before  *,'!.,  or  the  use  of  B.  may  be  re- 
voked, or  J),  miiv  ourrcndcr  to  the  reversioner. 


[  63  ]  I.  5.  ii.]  AN  ORIGINAL  VIEW         [§181—183. 

But  still  a  But,  ncverthele55s,  though  a  vested  remainder  is  181 
vested  re-  not  absolutely  certain  of  taking  elTect  in  possession 
maimleris  or  enjoyment,  it  is  only  uncertain  on  account  of  the  uncer- 
only  uncer-  tainty  of  its  duration  in  relation  to  the  duration  of  the  par- 
tain  on  ac-  ticular  estate  ;  it  is  only  uncertain  on  account  of  the  possi- 
count  of  the  \)i\\[y  qj.  probability  that  it  may  expire  or  be  defeated  before 
^^  !!  '-^^  ""'f  ^^^^  determination  of  the  particular  estate.     No  condition  is 

•,     '      -,        to  be  fulfilled,  no  event  to  happen,  before  the  right  of  future 

its  own  clu-  .  .  ^  .  /-    X  .1  •       • 

ration  ]iossession  or  enjoyment  can  be  perfect ;  notlnng  is  wantmg 

to  render  the  capacity  of  possession  or  enjoyment 
complete.     And  in   regard  to  tlie  indefeasibleness  182 

[  64  ]  of  the  riglit  of  possession  or  enjoyment,  and  the 

possession  or  enjoyment  itself,  a  vested  remainder  is  sure 
ultimately  to  take  eifect  in  possession  or  enjoyment,  if  only 
it  endures  beyond  the  preceding  estate.  For,  it  is  limited  to 
take  effect  after  an  estate  which  must  expire  at  a  time  or  on 
an  event  certain,  and  it  was  either  capable  at  the  very  first, 
or  has  subsequently  become  capable  of  taking  effect  in  pos- 
session or  enjoyment  at  that  time,  or  at  any  moment  that 
event  may  happen,  without  requiring  the  concurrence  of 
any  contingency,  as  respects  its  capacity  of  taking  effect  at 
that  particular  period. 
A  remainder      It  may  indeed  be  limited  in  such  a  way  as  to  be  183 

maybehmit-  capable  of  vesting  in  possession  either  on  a  contin- 
ed  on  a  con-  gent  determination,  or  on  tlie  certain  expiration  of  the  par- 
tingcncy,        ticular  estate,  whichever  shall  first  happen.     But,  ''even  in 
and  yet  be      this  case,  the   remainder  is  not  contingent, (a)  but  rather,  in 
vested.  fy^t,  the  more  certain.     For,  if  the  contingency  should  not 

happen  before  the  certain  expiration  of  the  particular  estate, 
it  can  of  course  have  no  effect  either  on  that  estate  which 
has  already  expired,  or  on  the  remainder  which  has  already 
vested  in  possession  or  enjoyment.  And  if  the  contingency 
should  happen  before  that  time,  it  cannot  render  a  remain- 
der contingent,  which  might  have  taken  effect  in  possession 
or  enjoyment  if  that  contingency  had  never  happened.  On 
the  contrary,  the  fact  that  the  remainder  might  vest  in  pos- 
session or  enjoyment  either  on  a  contingent  determination 
or  on  the  certain  expiration  of  the  particular  estate,  would, 
in  many  cases,  only  serve  to  render  such  remainder  more 
certain  of  taking  effect  in  possession  or  enjoyment;  inas- 
much as  if  the  contingency  is  likely  to  happen  before  the 
certain  expiration,  the  remainder  would  be  less  likely  to 
have  terminated  before  the  particular  estate,  and  conse- 
quently would  be  all  the  more  certain  of  taking  effect  in 
possession  or  enjoyment.  Thus,  if  land  be  limited  to  ^., 
during  widowhood  ;  or  to  ^.  for  life,  if  she  continue  unmar- 
ried ;  remainder  after  the  death  or  marriage  of./?.,  to  J3.  for 

(a)  See  Fearne,  19. 


I.  5.  iii.]  OF  EXECUTORY  INTERESTS.    [§154— 1S7.  [  64  ] 

life,  this  is  a  vested  remainder,  and  more  certain  of  vesting 
in  possession  or  enjoyment,  than  if  the  limitation  had  been 
to  A.  for  life,  remainder  to  B.  for  life  ;  because  A.  may 
marry,  and  B.  may  live  till  the  contingent  determination  of  [  C5  ] 

the  particular  estate  consequent  thereon,  that  is,  till  after  the 
marriage  of  i^.,  but  may  die  before  the  time  at  which  tlie 
particular  estate  is  sure  to  terminate,  that  is,  before  the  death 
oft/?.,  which  may  not  occur  till  many  years  afterwards.  A 
vested  remainder,  then,  though  it  may  be  limited  to  take 
effect,  or  capable  of  taking  effect,  in  possession  or  enjoy- 
ment, as  well  on  a  contingency  as  on  a  certainty;  yet,  in 
the  words  of  the  defmition,  it  does  strictly  depend  on  no  See  §  175. 
other  uncertainty  than  that  of  its  enduring  beyond  the  pre- 
ceding interests. 

SECTION  THE  THIRD. 

The  several  kinds  of  Contingent  Remainders   defined^ 
loith  Observations  thereon. 

The  learned  and  profound  author  of  the  foregoing  Trea-  Fourkindsof 
tise    on    Contingent   Remainders,    has    accurately    divided  contingent 
and   defined    them,   and    has  distributed   them  into    four  remainders, 
classes: — 

184  I.  "Where  the  remainder  depends  entirely  on  Definition  of 
a  contingent  determination  of  the  preceding  es-  the  first  kind 

tate  itself:  as  if  A.  makes  a  feoffment  to  the  use  of  B.  till  of  contingent 
C.  returns  from  Rome,  and  after  such  return  of  C,  then  to  remainders; 
remain  over  in  fee."(f/) 

185  II.  "Where  the  contingency  on  which  the  re of  tlio 

mainder  is  to  take  effect,  is  independent  of  the  dc-  second  kind; 

termination  of  the  preceding  estate  :"(6)  "as  if  a  lease  be 
made  to  A.  for  life,  remainder  to  B.  for  life,  and  if  B.  die  be- 
fore A.  remainder  to  C.  for  life."(c) 

186  III.  "^V^lere  a  remainder  is  limited  to  take  ef-  — ofthp 
feet  on  an  event,  which,  though  sure  to  happen  third  kind. 

some  time  or  other,  yet  may  not  happen  till  after  the  deter- 
mination of  the  particular  estate  :  as  if  a  lease  be  made  to 
J.  S.  for  life,  and  after  the  death  of  J.  D.,  the  lands  to  re- 
main over  to  another  in  fee."(^) 

187  IV.  "Where  a  remainder  is  limited  to  a  person 
not  ascertained,  or  not  in  being,  at  the  time  when 

such  limitation  is  made  :"  as  if  a  lease  be  made  to  one  for  [  66  ] 

life,  remainder  to  the  right  heirs  of  J.  S.,{e)  who  is  living; 
or  remainder  to  the  first  son  of  B.,  who  has  no  son  then 
born  ;  'or  if  an  estate  be  limited  to  two  for  life,  remainder  to 
the  survivor  of  them  in  (cc.{f) 

(a)  Fearne,  5.  (&)  Foarne,  5. 

(c)  Fearne,  7.  (d)  Fearne,  8. 

(e)  Fearne,  9.  (/)  Fearne,  9. 


[  G6  ]  I.  5.  iii.]  AN  ORIGINAL  VIEW         [§I87a— 191. 

Remarks  But  it  may  here  be  observed,  that  althoiii?h  it         lS7a 

on  a  devise    be  thought  that  a  devise  to  two,  and  tlie  survivor 
to  two,  of  them,  and  the  heirs  of  such  survivor,  gives  them  a  joint 

and  thesur-   estate  for  hfe  only,  with  a  contingent  remainder  and  fee  to 
vivor,andthe  (jjg  survivor;  s^yet,  notwithstanding  the  case  of    Vick  v. 
heirs  of  such  j?({n.ards,  3  P.  W.   372,  where  such  a  devise  is  in  trust  to 
survivor.        g^j]^  ^^  upon  any  trust  which  renders  it  necessary  that  the 
devisees  in  trust  slionld  have  tlic  fee,  they  will  be  construed 
to  take  the  fee,  even  in  a  court  of  ]aw.(^^)     For,  though  a 
court  of  law  cannot  take  cognizance  of  a  trust,  as  such  ;  yet, 
''  it  has  frequently  taken  notice  of  the  existence  of  the  object 
or  purpose  for  which  a  devise  was  made,  with  the  view  of 
determining  the  quantity  of  interest  which  the  testator  in- 
tended the  devisees  to  take. (A)     The  Court,  in  such  cases, 
,  has  taken  notice  of  the  expression  of  the  object  or  purpose 

as  an  indication  of  intention,  though  not  as  a  trust. 
All  the  kinds       It  must  be  particularly  observed,   that,  in  the  188 

of  contingent  first  class,  the  remainder  depends  entirely  on  a 
remainders     contingent  determination  of  the  preceding  estate  :  for  it  has 
strictly  do-     been  shown,  that  a  'remainder  may  be  limited  on  a  conlin- 
pend  on  a       gent   determination    of  the  particular   estate,  and   yet   be 
contingency   vested,  so  long  as  it  is  also  capable  of  taking  effect  in  posses- 
irrespcctivc    g^^^  qj-^  |j-,g  certain  expiration  of  that  estate,  without  regard 
of  ilieir  own  ^^  ^^^  collateral  contingency. (^)     In  the  second  and  fourth 
duration.        classes   of  contingent  remainders,  the  remainder   may  be 
limited  on  the  certain  expiration  of  such  estate  ;  but  yet  it  is 
contingent  in  respect  to  the  person  of  the  grantee,  or  in  re- 
gard to  some  collateral  events  constituting  a  condition  pre- 
cedent which  must  be  fulfilled  before  the  remainder  would 
[  G7  J  be  capable  of  taking  eflect  in  possession  or  enjoy- 

ment.    And  though,  in  the  third  class,  the  event,  189 

when  viewed  by  itself,  is  not  contingent,  because 
it  must  happen  some  time  or  other,  yet  the  remainder  does 
not  depend  on  the  mere  occurrence  of  that  event  irrespective 
of  any  particular  time,  but  on  the  fact  of  its  occurring  be- 
fore the  expiration  of  the  preceding  estate,  which 
is  strictly  a  contingency.     And  Jience  all  tlie  kinds  190 

of  contingent  remainders,  even   where   they  are 
limited  on  the  certain  expiration  of  the  particular  estate, 
Sec  §  176.     do,  according  to  the  foregoing  definition,  strictly  depend  on 

a  contingency  irrespective  of  their  own  duration. 
Theymayall      The  •'several  kinds  may  all  be  combined  in  the  191 

be  combined  same  limitation,  as  in  the  case  of  "  a  limitation  to 
in  the  same    .^.,  till  B.  returns  from  Rome,  and  after  the  return  of  B. 
limitation.      and  C.  from  Rome,  and  the  death  of  D.,  to  the  sons  of  A.^ 

(s;)  See  Fcarne,  557—559,  and  Butler's  note  {<•)  to  p.  358. 

(h)  See  the  author's  note  (1)  to  Fearno,  220. 

(i)  Fearne,  19  ;  and  Lord  Vaux''s  Case,  Cro.  El.  269,  as  there  slated. 


I.  5.  iii.]    OF  EXECUTORY  INTERESTS.  [§192—195.         [  G7  ] 

in  tail  male,  who  .shall  first  or  alone  attain  the  age  of  21 
years."(A-) 

192  A  remainder  after  an  estate  tail  may  seem  to  be  Remaindnrs 
a  contingent  remainder  of  the  first  kind.     ]Jut  a  after  estates 

failure  of  issne,  thongh  it  may  not  happen  till  a  very  distant  tail, 
period,  and  though  it  is  entirely  uncertain  when  it  will  hap- 
pen, is  considered  certain  to  happen  some  time  or 

193  other.     And  lience  a  remainder  limited  on  an  es- 
tate tail,  without  reference  to  a  failure  of  issue  at 

any  particular  time,  and  without  requiring  the  concurrence 
of  any  collateral  contingency,  does  not  fall  within  the  defi- 
nition of,  and  therefore  is  not  an  exception  from,  the  first 
kind  of  contingent  remainders,  but  is  strictly  and 

194  properly  a  vested  remainder.     But  'if  an  interest 
is  limited  to  take  effect  on  the  regular  expiration 

of  an  estate  tail  by  reason  of  a  failure  of  issue  at  a  particular 
time,  as,  fur  instance,  at  the  death  of  the  tenant  in  tail,  such 
interest  is  a  contingent  remainder.(/) 

195  Every  kind  of  interest  which  is  a  contingent  re-  A  contingent 
maindcr  in  relation  to  the  preceding  estate,  may  be-  [  GS  ] 

come  a  vested  remainder  in  relation  to  that  estate,  except  the  remainder 
first  of  the  four  kinds  of  contingent  remainders.     For  in  the  may  become 
three  last  kinds,  the  event  on  which  the  remainder  depended,  a  vested  re- 
being  unconnected  with  the  preceding  estate,  may  happen  mainder. 
during  the  continuation  of  that  estate,  so  as  to  remove  the 
contingent  character  of  the  remainder  dependent  thereon, 
and  convert  it  into  a  vested  remainder.     But,  in  the  first 
kind,  as  the  event  forms  the  limit  of  the  preceding  estate 
itself,  no  sooner  does  lliat  event  happen,  than  the  preceding 
estate  ceases,  and  the  interest  which  was  to  take  effect  on 
such  event,  immediately  becomes  an  estate  in  possession,  or 
in  enjoyment,  or  both  in  possession  and  enjoyment. 

(A:)  Fcarnc,  9,  note  (g). 

(l)  See  Fcarne,  7,  note  (d) ;  and  Driver  d.  Edgar  v.  Edgar,  Cowp.  Rep. 
379 ;  and  Fountain  v.  Gooch;  as  stated  and  commented  on,  Fearne,  42G — 428. 


PAUT  11. 

RULES  AND  PRINCIPLES  FOR  DISTINGUISHING  CERTAIN 
CASES  OF  ONE  KIND  OF  LIMITATION  CREATING  AN 
INTEREST,  FROM  ANOTHER  KIND  TO  WHICH  TIIEY 
MAY  APPEAR  TO  BELONG. 


Vol.  IL— 8 


L   71    J 


CHAPTER  THE  FIRST. 

OF    THK    CONSTRUING    A     LIMITATION    TO     BE     A    REMAINDKH 
RATHEU   THAN    AN    EXECUTORY    LIMITATION    NOT    BY    WAY 
.OF    REMAINDER. 

196  "It  is  a  well-known  rule,  that  a  limitation  shall,  The  general 
if  possible,  be  construed  to  be  a  remainder,  rather  rule,  as  com- 

197  than  an  executory  devise. (r/)     Or,  to  express  ihc  "^onlystaled. 
rule  more  precisely,  and  in  its  true  extent,  a  limi-  ^^-^  v  674-5. 

tation,  whether  by  deed  or  devise,  shall,  if  it  possibly  can  The  general 
consistently  with  other  rules  of  law,  be  construed  to  be  a  re-  ri'lf»fis  more 
inaindcr  rather  than  an  executory  Urnitation  not  by  way  of  a<^curately 
remainder.  stated. 

198  ''The  reason  which  is  usually(i6)  and  justly  as-  Reason 
signed  for  this  rule  is,  that  an  executory  interest,  usually  as- 

not  by  way  of  remainder,  unless  it  is  engrafted  on  an  estate  signed  for 
tail,  cannot  be  barred;  and,  consequently,  there  is  a  ten- the  same, 
dency  in  such  interests,  to  a  perpetuity,  which  is  contrary  to 
the  policy  of  the  law. 

199  It  may  be  added,  however,  that  it  may  perhaps  An  addition- 
have  been  originally  adopted,  partly  at  least,  for  Jil  reason. 

another  and  more  general  reason,  which  would  seem  to 
alfect  executory  interests  engrafted  on  an  estate  tail,  as  well 
as  those  engrafted  on  other  estates,  though  the  application 
of  that  reason  lias  ceased  since  the  Statute  of  Uses.  Before 
that  statute,  executory  interests  which  were  not  by  way  of  re-  Sec  §  159, 
maiuder,  or  by  way  of  augmentative  or  diminuent  limitation,  [  72  ] 

could  only  be  limited  by  way  of  use  or  devise;  and  they  l''?7,  147, 
were  mere  trusts,  which  could  only  be  enforced  in  equity;  r--'7a,  149a. 
and  therefore  it  is  not  improbable  that  the  Courts,  for  this 
reason,  as  well  as  for  the  preceding,  may  have  inclined  to- 
wards construing  a  limitation  to  be  a  remainder,  ratlier  than 
an  executory  interest  not  by  way  of  remainder. 

(a)  Fcarne,  386,  395 ;  and  Purefoij  v.  Rogers,  2  Saund,  380  ;  Walter  v 
Drao,  Com.  Rep.  372;  Wealthy  v.  BosxhUc,  Rep.  K.  B.  tcm[).  Ilardw.  258 
Carwardine  v.  Carwardine  ;  Doc  d.  Mussel  v.  Morgan,  3  Durn.  &  East,  376 
Doe  d.  Bron-ne  v.  Holme,  3  Wils.  237  ;  and  (ioodtitle  v,  BiUington,  Dougl 
Rep.  725,  or  735  3d.  ed.;  as  cited,  Fearnc,  386—394.  Spalding  v.  Spald 
ing,  Cro.  Car.  185;  as  stated,  Fcarne,  420. 

(h)  See  Lord  Eldon's  observations  in  Doc  d.  Barnfield  v.  Wetton,  2  Dos.  vS; 
Pul.  327. 


L   73  J  11.  2.  i.J 


AN  ORIGINAL  VIEW        [§200—205. 


CHAPTER  THE  SECOND. 

OF  THE  CONSTRUING  AN  INTEREST  TO  BE  VESTED,  RATHER 
THAN  CONTINGENT. 


SECTION  THE  FIRST. 
The  Rule  stated  and  the  Reasons  thereof  explained. 


The  general 
rule,  as  com- 
monlystated. 
Tiie  general 
rule,  as  more 
precisely 
stated. 


Reasons 
thereof"; 
namely, 

1.  Destruc- 
tihiiity  of 
contingent 
interests. 

2.  Abuse  of 
the  property 
by  the  heir 
at  law  in  the 
interim. 


200 


201 


202 


203 


[   74   ] 

3.  Unsettled 
state  of  the 
family  whose 
interest  is 
contingent. 


It  is  a  well-known  general  rule,  that  an  interest 
shall  be  construed  to  be  vested,  rather  than  con- 
tingent. Or,  to  express  the  rule  more  precisely, 
that,  in  doubtful  cases,  an  interest  shall,  if  it  possi- 
bly can  consistently  with  other  rules  of  law,  be  construed  to 
be  vested  in  the  first  instance,  rather  than  contingent ;  but,  if 
it  cannot  be  construed  as  vested  in  the  first  instance,  that  at 
least  it  shall  be  construed  to  become  vested  as  early  as  pos- 
sible. 

The  following  reasons  may  be  assigned  for  this 
rule : — 

1.  A  contingent  interest  is  generally  more  liable 
to  be  destroyed  than  one  that  is  vested ;  and  it  is 

to  be  presumed,  that  a  testator  intends  that  species  of  limi- 
tation which  will  be  most  likely  to  secure  the  accomplish- 
ment of  his  plans. 

2.  "  Testators  that  create  contingent  estates,"  204 
observes  Lord  Chief  Justice  Best(r/),  '•  often  forget 

to  make  any  provision  for  the  preservation  of  their  estates, 
and  for  the  disposition  of  the  rents  and  profits  in  the  inter- 
mediate period  between  their  deaths  and  the  vesting  of  their 
estates.  In  such  cases  the  estates  descend  to  the  heirs,  who, 
knowing  that  they  are  to  enjoy  them  only  for  a  short  period, 
and  that  they  have  obtained  the  possession  of  them  from  the 
inattention  of  and  not  from  the  bounty  of  the  testator,  or 
from  the  mistake  of  the  professional  man  who  drew  the  will, 
will  make  the  most  they  can  of  them,  during  the  time  that 
they  remain  heirs,  regardless  of  any  injury  tliat  the  estates 
may  suffer  from  their  conduct." 

3.  "  The  rights  of  the  different  members  of  fami-  205 
lies  not  being  ascertained  while  estates  remain  con- 
tingent, such  families  continue  in  an  unsettled  state  which 
is  often  productive  of  inconvenience,  and  sometimes  of  inj  ury 
to  them." 


(o)  In  Dtifeld  v.  Duffield,  1  Dow.  &  Clark,  311,  312. 


II.  2.  ii.]    OF  EXECUTORY  INTERESTS.  [§20G— 210.         [  71  J 

20G  4.  "  If  tlio  ])arents  attaining  a  certain  age,  be  a  4,  Want  of 

condition  precedent  to  the  vesting  estates,  by  the  provision  for 
death  of  their  parents  before  they  are  of  tliat  age,  children  children  of 
lose  estates  which  were  intended  for  them,  and  which  their  parents  dy- 
rclation  to  the  testators  may  give  them  the  strongest  claim  ingunderago 

to."  of  21,  to 

207  "  But,"  (adds  the  learned  Judge(6), as  to  tlic  last-  ^^hich  vest- 

mentioned  reason  for  construing  a  devise  contin-  '"o  '^  post- 
gent,)  "is  it  wise  to  encourage  the  marriage  of  infants,  by  P^^^cd. 
making  a  provision  for  the  children,  liowever  improvident,  ^ee^ 94,748. 
and  however  much  in  opposition  to  the  wishes  of  their  Weight  of 
guardians,  such  marriages  may  be  contracted  ?    The  uncer-  this  reason 
tainty  of  a  provision  for  a  family  may  occasion  a  pause,  '^^'''y  ^^ 
before  tiie  most  important  step  in  life  be  taken,  which  can-  doubted, 
not  be  attended  with  lasting  inconvenience,  and  may  pre- 
vent lasting  misery.    Children  will  seldom  suffer  from  estates 
remaining  contingent  until  their  parents  attain  the  age  of  21, 
as  few  to  whom  such  estates  are  given  will  have  legitimate 

children  before  they  are  of  age."  ^ 

20s  5.  In  other  cases,  where  the  interest  is  contin-  '^\    ■'^"'^  '], 

gent  on  account  of  the  person,  and  where,  as  we  P'°^'^'"" 'O'" 
1     11  I  r*       4i      •    t         ..  •  .1  .  •      children  m 

shall  see  hereaiter,  the  niterest  is  consequently  untransmis-     ■ 

sible  to  the  representatives  of  the  person,  in  the  event  of  his  ^yj^gj-^  \\,q 
death  before    the  condition    is  fulfilled ;    the  same  reason  interest  is 
applies,  and  with  more  force,  because  not  counterbalanced  contin<»ent 
by  the  objections  urged  by  the  learned  Judge  against  con- on  account  of 
struing  an  interest  to  be  vested,  which  is  apparently  made  the  person. 
contingent  upon  the  attainment  of  the  age  of  21.      See §91,748. 

209  6.   Where  the  vesting  is  apparently  suspended  q   Want  of 
till  the  attainment  of  a  certain  age,  and  there  is  no  maintenance 

disposition  of  the  interim  income,  and  no  provision  for  the  ibr  the  per- 
maintcnance  of  the  person  interested  ;  if  the  interest  is  held  sons  thcm- 
to  be  contingent,  he  may  be  entirely  left  without  the  means  selves, in cer- 
of  being  educated  and  maintained,  or  without  the  means  of  [  75  ] 

being  educated  and  maintained  in  a  manner  suitable  to  the  tain  cases,  to 
fortune  which  in  all  probability  he  will  afterwards  possess,  whom  con- 
§   209a.   7.     The  law  favours  the  alienation  of  property;  tingent  inter- 
whereas  the  contingent  quality  of  an  interest  renders  such  ^^^  ^^'^ 
interest  incapable  of  being  directly  transferred  by  deed,  or  g'^'cn. 
even  by  a  fine  or  recovery.     (See  §  754.) 

SECTION  THE  SECOND. 

The  *,lppUcation  of  the  Rule  to  Limitations  in  /avoU7'  of 
a  person  of  a  given  Character. 

210  I.  Where  a  testator,  after  devising  particular  ^^'hcn  nn  ul- 
estates,  makes  an  ultimate  devise  to  his  heir  at  law,  timate  linii- 

{h)  lb.  312,  313. 


[  75  ]  II.  2.  ii.J 


AN  ORIGINAL  VIEW  [§211,212. 


lation  in 
favour  of  c-in 
lieir creates  a 
vested  inter- 
est. 


Reason  Ibr 
the  rule. 


O'Keefe  v. 
Jones,  13 
Ves.  412. 


Doc  d.  PU- 
hington  v. 
Spralt,  .5 
Bar.  &  Adol. 
731. 


[   76   ] 


When  an  ul- 
timate limi- 
tation in 
favour  of  an 
heir  creates 
a  contingent 
interest. 
Marquis 
Cholmon- 
deley  v. 
Lord  Clin- 
ton, 2  Jac.  & 
Walk.  1. 


siicli  ultimate  devise  does  not  create  a  contingent  remainder 
in  favour  of  a  person  who  shall  answer  the  description  of 
heir  at  law  on  the  expiration  of  the  particular  estates,  but 
creates  a  vested  interest  in  favour  of  the  person  who  is  the 
heir  at  law  of  the  testator  at  the  time  of  his  death,  even 
though  the  person  to  whom  the  first  particular  estate  is  de- 
vised, is  the  testator's  eldest  son  and  heir  at  law,  and  though 
the  mere  form  of  the  devise  may  seem  clearly  to  uidicate  a 
contrary  intent. 

The  reason  of  this  is,  not  only  that  the  law  leans  211 

in  favour  of  vesting,  but  also  because  the  word 
"  heir,"  unqualified  by  any  adjective,  is  a  technical  word, 
denoting  the  person  on  whom  the  law  casts  the  inheritance 
on  the  a)icesio)'\i  decease. 

A  testator  devised  to  his  sons  for  life,  and  to  their  first  and 
other  sons,  in  tail ;  and,  in  default  of  such  issue,  then  to  iiis 
next  heir  at  law.  Sir  W.  Grant,  M.  R.,  held  that  this  was 
not  a  contingent  remainder  to  such  person  as  should  be  the 
heir  at  law  of  the  devisor  at  the  time  of  failure  of  issue,  but 
that  the  eldest  son  took  the  reversion. 

And  where  a  testator  devised  to  a  younger  son  and  others, 
for  their  lives ;  and,  after  their  decease,  to  the  male  heir  at 
law  of  him  the  testator,  his  heirs  and  assigns  for  ever.  It 
was  held,  that  the  fee  vested,  at  the  testator's  death,  in  the 
person  who  was  then  his  male  heir  at  law,  and  did  not  re- 
main contingent  until  tlie  determination  of  the  life  estates, 
and  vest  in  the  person  who,  upon  such  determination,  sus- 
tained the  character  of  his  male  heir  at  law.  The  grounds 
of  tiiis  decision  were,  that  the  law  favours  the  vesting  of 
estates,  and  that  there  was  nothing  to  show  that  the  testa- 
tor did  not  mean,  by  the  words  "  male  heir  at  law,"  what 
the  law  would  strictly  speaking  intend  heir  male  at  law  at 
the  time  of  his  death — nothing,  at  least,  beyond  what  was 
barely  sufiicient  to  raise  a  conjecture  to  the  contrary. 

II.  But  where  a  person  devises  to  the  heir  of  a  212 

person  previously  deceased  (or,  it  is  conceived,  to 
his  own  heir),  and  it  appears  that  he  meant  the  person  who 
should  answer  that  description  on  the  exjjiration  of  the  par- 
ticular estates;  the  ultimate  limitation    to  such  lieir,  will 
create  a  contingent  remainder  accordingly. 

George,  Earl  of  Orford,  in  a  conveyance  to  uses,  reciting, 
that  lie  was  desirous  that  certain  estates,  derived  from  his 
mother's  family,  should  remain  in  the  family  of  Samuel 
Rolle,  (deceased,)  his  maternal  grandfather,  in  consideration 
of  his  natural  love  and  affection  for  his  relations,  the  heirs 
of  Samuel  Rolle,  and  to  the  intent  that  llie  said  estates  might 
continue  in  the  family  and  blood  of  his  late  mother,  on  the 
side  of  her  father,  settled  them  to  the  use  of  himself  for  life, 
remainder  to  tlie  heirs  of  his  body;  fur  default  of  such  issue, 


II.  2.  ii]      OF  EXECUTORY  INTERESTS.  [§212.         [  70  ] 

ns  he  should  appoint;  and,  for  default  of  appointment,  to 
the  use  of  the  rii^dit  heirs  of  Samuel  Rolle,  with  a  power  of 
revocation  and  new  appointment.  'J'he  (piestion  was,  whe- 
ther the  ultimate  liinitation  designated  the  right  heirs  at  the 
date  of  the  deed,  or  the  right  heirs  at  the  determination  of 
tlic  preceding  estates,  or  some  existing  person  other  than  the 
person  who  actually  sustained  the  character  of  right  heir  at 
liie  date  of  the  deed.  Sir  W.  Grant,  M.  R.,  thought  that  the 
words  "  right  heirs  "  had  one  settled  uniform  legal  import, 
according  to  which  the  Court  was  bound  to  consider  them 
as  conferring  a  vested  remainder  on  the  person  who  was  the 
right  heir  of  Samuel  Rolle  at  the  time  of  tlie  execution  of 
the  deed,  notwithstanding  any  manifestation  of  a  contrary  in- 
tent. (2  .lac.  &  Walk.  68,  69.)  But  he  directed  a  case  for 
the  opinion  of  the  Judges  of  the  Court  of  King's  Rench. 
Three  of  the  Judges,  namely,  Abbott,  llolroyd,  and  Best, 
certified  in  conformity  to  the  opinion  of  Sir  W.  Grant.  {lb. 
2.)  But  Mr.  Justice  Bayley  gave  a  contrary  opinion,  that 
the  ultimate  limitation  conferred  a  contingent  remainder  on 
such  person  as  should  be  right  heir  of  Samuel  Rolle  on  the 
expiration  of  the  preceding  estates.  {lb.  3.)  And  Sir  Thomas 
Plurner,  who  had  succeeded  to  the  ofticeof  Master  of  the  Rolls,  [  77  ] 

decided  in  consonance  with  the  opinion  of  Mr.  Justice  Bayley, 
It  was  acknowledged  on  all  hands,  that  the  object  of  the  set- 
tlor was  to  carry  the  estate  to  his  relations  on  the  mother's 
side,  on  his  death  without  issue:  {lb.  77:)  and, in  fact,  as  he 
was  of  advanced  age,  and  without  issue,  and  unmarried,  at 
the  time  when  the  deed  was  executed,  that  was  evidently 
his  sole  object.  {lb.  72.)  And  it  was  admitted,  that  if  the 
words  right  heirs  were  referred  to  the  period  of  the  expira- 
tion of  the  preceding  estates,  according  to  the  opinion  of  Mr. 
Justice  Bayley  and  Sir  Thomas  Plurner,  the  whole  deed 
would  then  be  consistent,  intelligible,  and  operative.  {lb.  79.) 
If,  on  the  other  hand,  the  interpretation  of  Sir  W.  Grant  and 
the  three  other  judges  had  been  adopted,  the  whole  deed 
would  have  been  inexplicable  and  useless.  For,  the  settlor 
being  the  only  son  of  his  mother,  who  was  the  only  child  of 
Samuel  Rolle,  must  have  known  that  no  person  could  be  the 
right  heir  of  Samuel  Rolle,  so  long  as  he  or  any  of  his  issue 
were  living,  but  he  the  settlor  himself  and  his  issue ;  and 
the  settlor  and  his  issue  being  already  provided  for  by  the 
preceding  limitations,  it  was,  under  these  circumstances,  ut- 
terly inconsistent  to  suppose  that  they  were  intended  by  the 
words  right  heirs  of  Samuel  Rolle,  in  the  ultimate  limitation. 
And  if  the  estate  had  vested  in  the  settlor  himself  under  the 
ultimate  limitation,  it  would,  on  his  death  without  issue, 
liave  passed  to  his  ])alernal  uncle,  to  the  entire  exclusion  of 
the  Rolle  family,  {/b.  73,  78.)  From  these  considerations, 
it  was  evident,  that  the  settlor  did  not  intend  to  confer  a 


[  77  ]  II.  2.  ii.] 


AN  ORIGINAL  VIEW 


[§214. 


[  7S  ] 


Devise  to  a 

person  by 
any  other 
description, 
denotes  a 
person  sus- 
taining such 
description 
at  testator's 
death. 

See  §  200-9. 
Perry  v. 
Phelips,  1 
Ves.  2.50. 


Driver  v. 
Frank,  3 
Mau.  &Sel. 
2.5. 


vested  remainder  on  the  person  who  was  right  heir  when 
llie  deed  was  executed  ;  and  that  lie  did  intend  to  confer  a 
contingent  remainder  on  the  person  who  was  right  heir  on 
his  death  and  faihire  of  issue.  And  there  was  no  just  reason 
wliy  this  intention  should  not  be  carried  into  elfect.  "Lay- 
ing aside  inference  and  presumption,  the  words  right  heirs  of 
S.  R.  contain  a  general  description  of  a  person  standing  in 
that  relation  to  S.  R.  at  some  time  or  other,  but  not  necessa- 
rily at  any  particular  time  .  .  .  .As  it  stands,  it  is  a  generic, 
not  a  specific  description  ;  it  wants  all  that  can  give  it  par- 
ticularity and  identity  ....  Without  some  addition,  there- 
fore, to  the  description,  no  use  can  be  made  of  it."  {/b.  87, 
SS.)  "  In  the  absence  of  any  secondary  proof  of  intention 
being  afibrded  to  the  deed,  to  supply  the  meaning  thus  left 
imperfect,  the  law  steps  in  to  supply  the  meaning,  by  pre- 
sumption, in  favour  of  vesting  in  an  existing  character."  But 
this  is  only  when  the  grantor  himself  has  been  totally  silent 
(Id.  81);  for,  "it  Is  contrary  to  all  principle,  that  presump- 
tion should  be  allowed  to  operate  in  opposition  to  direct 
proof."  (lb.  89.)  "  Is  the  Court  to  persevere  in  adherence 
to  a  supposition,  when  it  is,  in  the  particular  case,  proved  to 
be  ill-founded  ?     {lb.  82.) 

III.  Where  a  testator  devises  to  a  person  by  214 

any  other  description  denoting  a  person  sustaining 
a  particular  character,  (such  as  youngest  or  only  surviving 
son,  or  a  child  other  than  and  except  the  first  or  eldest  or 
an  only  son,  or  the  nearest  in  blood  ;)  the  devise  creates  a 
vested  interest  in  favour  of  the  person  answering  that  de- 
scription at  the  death  of  the  testator.  This  is  in  accordance 
with  the  general  rule,  that  an  interest  shall,  if  possible,  be 
construed  to  be  vested,  rather  than  contingent. 

A  testator  gave  personal  estate,  and  rents  and  profits  of 
real  estate,  in  trust  to  accumulate  until  the  youngest  or  only 
surviving  son  of  the  trustee  should  attain  21,  and  then  to  be 
laid  out  in  land,  and  conveyed,  with  other  real  estate,  to 
such  son.  J.  T.  L.,  the  only  surviving  son,  attained  21, 
and  died  in  his  father's  lifetime.  The  Lord  Chancellor  held, 
tliat  the  vesting  of  the  property  was  not  suspended  until  the 
death  of  the  father,  but  that  it  vested  in  J.  T.  L.  by  execu- 
tory devise,  subject  to  be  devested  by  the  birth  of  another 
son  of  the  trustee. 

From  tliis  case,  it  might  appear  that  the  interest  does  not 
vest  indcfeasibly,  but  subject  to  be  devested  in  case  of  the 
given  description  ceasing  to  belong  to  the  party,  and  attach- 
ing in  another  person.  But  this  doctrine  was  overruled  by 
subsequent  decisions  :  Thus,  a  testatrix  devised  all  her  real 
estates  to  tlie  use  of  B.  F.,  for  life ;  and  from  and  imme- 
diately after  his  decease,  then,  to  the  use  of  the  second,  third, 
fourth,  and  all  and  every  other  the  son  and  sons  of  B.  F. 


II.  2.  ii.]       OF  EXECUTORY  INTERESTS.  [§214.^        [  78  ] 

(except  the  first  or  eldest  son,)  severally,  successively,  and 
in  remainder,  one  after  another,  and  of  ihe  several  and  re- 
spective heirs  male  of  the  body  and  bodies  of  every  snch 
son  and  sons  (except  the  first  or  eldest  son;)  and  for  default 
of  such  issue,  then  she  devised  to  the  use  of  F.  S.,  youngest 
son  of  ^F.  .S'.,  &c.  B.  F.  and  f^F.  S.  were  the  husbands  of 
the  testatrix's  nieces;  and  B.  F.  was  tenant  in  tail  in  pos-  [  79  ] 

session  of  large  landed  estates  ;  and  IV.  S.  was  tenant  in  fee 
of  some  part,  and  tenant  for  life,  with  remainder  to  his 
eldest  son  in  tail,  of  other  part,  of  estates  of  considerable 
value.  B.  F.  had  no  children  at  the  date  of  the  will,  IF.  S. 
had  two,  if  not  more.  Lord  Ellenborough,  C.  J.,  was  of 
opinion  that  the  remainder  to  the  sons  of  B.  F.  was  a  con- 
tingent remainder  to  such  son  of  B.  F.  as  should  be  the 
second  sou  of  B.  F.  at  the  death  of  B.  F.\  or  a  vested  re- 
mainder in  the  second  or  other  son  of  B.  F.,  liable  to  be  de- 
vested by  his  becoming  the  first  or  eldest,  by  the  death  of 
his  elder  brother  in  the  lifetime  of  B.  F. :  (3  Mau.  &  Sel. 
54,  55  :)  because  the  cases  fully  established,  that  the  first 
born  son  is  synonymous  with  eldest,  and  that  eldest  means 
the  first  son  capable  of  taking  under  that  denomination  at 
the  time  to  which  the  will  refers,  which  there  was  at  the 
death  of  B.  F.,  the  tenant  for  life  {lb.  61  ;)  and  because  it 
was  morally  certain,  that  the  intention  was,  to  erect  a  new 
family,  with  that  view,  to  prevent  the  union  of  the  estates  of 
B.  F.'s  f^imily,  or  of  JV.  S.'s  family,  with  those  devised  by 
the  will  {lb.  50 — 53);  and  such  being  the  case,  the  Court 
was  not  warranted  in  making  another  will  for  the  testatrix, 
which  it  would  be  indirectly  but  in  effect  completely  doing, 
if  it  adopted  such  a  construction  as  excluded  inconveniences 
which  the  testatrix  did  not  contemplate,  and  sacrificed  ob- 
jects which  she  did.  But,  it  was  held  by  the  three  other 
Judges,  Dampier,  Bayley,  and  Le  Blanc,  that  it  was  a 
vested  indefeasible  remainder  in  the  second  or  other  son  of 
B.  F.  who  should  be  born  living  an  elder  son  ;  and  there- 
fore, as  B.  F.  liad  four  sons,  of  whom  the  second  and  third 
and  the  second  and  fourth  respectively  were  in  existence  at 
the  same  time,  but  all,  except  the  fourth,  died  in  the  lifetime 
of  B.  F.  without  issue,  they  held  that  the  surviving  son  was 
entitled.  And  the  grounds  of  their  decision  were,  in  sub- 
stance, these  :  That  the  prevention  of  an  union  of  the  family 
estates  was  only  the  most  probable  of  several  possible  mo- 
tives. That  the  construction  which  would  prevent  such 
union,  would  prevent  any  family  settlement  of  the  estate 
during  ^'s  life.  That  if  this  construction  were  adopted, 
and  the  eldest  son  had  died  in  B.  F.'s  lifetime,  leaving  is- 
sue ;  the  second  son  would  become  an  eldest  son,  without  [  SO  ] 
obtaining  the  eldest  son's  estate,  and  yet  would  thereby  be 
excluded  from  the  estate  devised  to  the  second  son.  Or,  if 
Vol.  II.— 9 


[  80  ]         II.  2.  ii.]  AN  ORIGINAL  VIEW  [§214. 

tlie  second  son  died,  leaving  issue,  the  provision  intended 
for  a  second  son's  family,  would  go  to  the  third  son,  or  to 
another  family.  That  the  holding  the  remainder  vested  in 
B.  F.'s  second  son  as  soon  as  he  had  two  sons  together  in 
esse,  would  satisfy  every  word  in  the  will,  and,  as  far  as 
they  could  be  certain,  every  motive  of  the  testatrix  :  for,  as 
she' had  given  the  remainder  to  F.  S.  by  name,  and  there- 
fore, had  given  such  remainder  absolutely  to  him  whom 
she  found  a  younger  son  of  F.  S.,  without  guarding  against 
the  event  of  his  becoming  an  eldest  son  ;  so  it  might  fairly 
be  inferred,  that  she  meant  to  give  the  prior  remainder  abso- 
lutely to  him  who  should  first  become  the  second  son  of 

B.  F.  And  that  this  construction  would  fall  in  with  the 
axiom,  that  no  remainder  is  to  be  deemed  contingent,  which 
can  be  deemed  vested;  whereas  the  construing  the  remain- 
der contingent,  would  contravene  that  axiom  :  and  the  cori- 
struing  it  vested,  but  liable  to  be  devested,  would  render  it 
necessary  to  supply  a  whole  clause,  to  give  it  a  complete 
effect  as  a  conditional  limitation.  The  decision  was  af- 
firmed by  the  Court  of  Exchequer  Chamber ;  Richards,  L. 

C.  B.,  Gibbs,  L.  C.  J.,  Dallas,  J.,  and  Borough,  J.,  agreeing 
with  the  majority  of  the  Judges  in  the  Court  of  King's 
Bench;  and  Graham,  B.,  and  Wood,  B.,  agreeing  with 
Lord  EUenborough.  Wood,  B.,  said,  that  when  the  testa- 
trix excluded  the  first,  she  meant  the  first  born ;  when 
she  excluded  the  eldest,  she  meant  to  exclude  him  who 
should  answer  the  description  of  first  or  eldest  at  the  time  of 
B.  F.'s  death;  the  word  eldest  being  a  term  which  shifts  in 
its  application,  according  to  the  changes  which  may  take 
place  in  a  family,  {lb.  483,  482  ;  S.  C.  8  Taunt.  468.  See  § 
201,  202.) 

Observations  The  primary  question  in  this  case,  was,  To  what  time 
on  Drirer  V.  did  the  words  eldest  and  second  refer;  or,  at  what  period 
Frank.  was  a  son  to  answer  the  character  of  eldest  son,  in  order  to 

be  excluded,  or  of  second  son,  in  order  to  entitle  him  to 
take  ?  Now,  the  words,  in  themselves,  seem  entirely  ambigu- 
ous in  this  respect:  they  might  mean  eldest  and  second  at 
the  time  of  the  birth  of  such  second  son,  an  elder  son  being 
then  in  esse;  or  they  might  mean  eldest  and  second  at  the 
[  81  ]  time  of  the  death  of  B.  F.     How  then  was  the  ambiguity 

to  be  removed?  Was  it  by  calling  in  the  aid  of  an  ac- 
See§  200-1.  knowledged  rule  of  construction,  which  requires  that  a  re- 
mainder should  be  construed  vested,  rather  than  contin- 
gent; and  by  which  the  apparent  object  of  the  testatrix 
would  be  accomplished  in  certain  events,  though  not  in 
others,  and  without  involving  any  of  the  mischiefs  which 
might  result  from  a  contrary  construction?  Or,  was  the  am- 
biguity to  be  removed,  by  resorting  to  an  inference,  not  only 
that  the  apparent  object  was  to  a  certainty  the  actual  ob- 


II.  2.  ii.]      OF  EXECUTORY  INTERESTS.  [§214.         [  81  ] 

ject ;  but  also,  that  it  was  the  intent  of  the  testatrix  that 
such  object  should  be  accomplished,  not  merely  in  certain 
events,  but  in  all  other  events,  even  in  those  in  which  the 
consequences  that  would  follow,  and  the  analogous  ulterior 
limitation  to  F.  S.,  clearly  showed  that  it  was  not  intended 
to  be  carried  into  eflect?  It  must  surely  be  evident,  that 
the  ambiguity  ought  to  be  removed  in  the  former  way,  or, 
in  other  words,  that  the  judgment  of  the  Courts  of  King's 
Bench  and  Exchequer  Chamber  was  right. 

Aizain,  a  testator  devised  his  Stanton  Drew  estate  to  G. ./?.,  Adams  v. 
for  hfe  ;  remainder  to  G.  A.  J2.,  first  son  of  G.  A-,  for  life  ;  Bush,  6 
remainder,  in  strict  settlement,  to  the  issue  of  G.  A.  A.\  re-  Bing,  New 
mainder  to  J.  P.  J2.,  second  son  of  G.  Ji.,  for  life,  remainder  Cases,  164. 
to  the  issue  of  J.  P.  A.,  in  strict  settlement;  with  similar 
remainders  to  the  other  sons  of  G.  A.  and  their  issue.  And 
he  devised  a  moiety  of  his  share  in  the  manor  of  Timsbury 
to  G.  A.,  for  life;  remainder  to  the  wife  of  G.  A.,  for  life; 
remainder  to  the  child  and  children  of  G.  A.,  other  than  and 
except  an  eldest  or  only  son,  in  fee ;  and  if  their  should  be 
no  such  child  or  children,  other  than  an  elder  or  only  son, 
or  being  such,  all  should  die  under  21,  then,  to  such  persons 
as  should  become  entitled  to  the  proceeds  of  the  Hoxton 
Manor  Farm.  And  he  devised  the  Norton  Manor  Farm  to 
E.  L.,  for  life,  and  her  children  in  tail ;  and,  in  default  of 
issue,  the  estate  was  to  be  sold,  and  the  money  divided 
among  the  children  of  G.  A.,  other  than  and  except  an 
elder  or  only  son.  G.  P.  A.  was  the  second  son  of  G.  A. 
at  the  testator's  death ;  but  at  the  death  of  G.  A.  he  was 
the  only  child.  It  was  held,  however,  that  he  took  an 
estate  in  fee  on  his  father's  death. 

The  principle  of  avoiding  mere  conjecture  as  to  the  inten-  [  82  ] 

tion  of  preventing  an  union  of  estates,  is  also  illustrated  by 
a  case  where  a  testator  devised  to  trustees  and  their  heirs,  in  Stanley  v. 
trust  to  receive  the  rents  until  T.  M.,  the  second  son  of  T.  Stanley,  16 
S.  M.,  should  attain  21;    and  immediately  after   T.    M  Yes.  491. 
should  have  attained  21,  to  convey  to  the  use  of  T.  M.,  for 
hfe ;  remainder  to  trustees  to  preserve  contingent  remain- 
ders; remainder  to  his  first  and  other  sons,  in  tail  male. 
And,  in  default  of  such  issue,  or  in  case  of  the  death  of  T. 
M.  before  21,  upon  similar  trusts  for  other  younger  sons  of 
T.  S.  M.     And  there  was  a  proviso,  that  in  case  any  younge 
son  should  become  possessed  of  the  estate  at  P.,  then  in  the 
possession  of  T.  S.  M.,  the  devise  or  limitation  directed 
should  cease  and  become  void  or  not  take  eflect,  and  the 
persons  next  in  remainder  under  the  said  limitations,  should 
thereupon  become  entitled  to  the  possession  of  the  property 
devised  by  the  testator.     Sir  W.  Grant,  M.  R.,  held,  that,  on  See  §  11  c, 
the  authority  of  Boras/on's  Case  and  many  others,  7'.  M.  inf.,  159, 
took  a  vested  remainder  for  life,  after  an  estate  in  tiie  trus-  50,  52,  58, 

759. 


L  82  ]  II.  2.  iii.]  AN  ORIGINAL  VIEW        [§215—217. 

tecs  for  so  many  years  as  his  minority  might  last  (16  Ves. 
506  :)  and  that  on  the  authority  of  Doe  dem.  Heneage  v. 
Heyieage,  4  T.  R.  13,  T.  7l/.'s  only  son,  the  first  tenant  in 
tail,  became  entitled  under  the  proviso,  notwithstanding  the 
descent  of  the  estate  at  P.  on  his  father  T.  M.,  and  even 
though,  at  that  time,  T.  M.  had  no  son.  For  the  testator 
had  not  said  he  meant  to  prevent  the  union  of  the  two  es- 
tates, as  long  as  the  law  would  permit ;  and  the  estate  to 
trustees  was  the  next ;  and  they  were  capable  of  possession, 
and  under  the  protection  of  their  estate,  the  contingent  re- 
mainders to  the  first  and  other  sons  of  T.  M.  were  to  be 
considered  as  subsisting  remainders,  to  prevent  the  second 
devisee  for  life  answering  the  description  of  next  in  remain- 
der, {lb.  509.) 
^f^'>'t  ">'  In  another  case,  a  testator  devised  to  Ji.  IL,  for  life  ;  re- 

Platcll,  5      mainder  to  trustees  to  preserve  &c. ;  remainder  to  JR.  H., 

T5*  TV  » 

cing.  i\ew     gQ,j  qj  ^^  jLj^  ^Qj,  ij^g .  i-Qdiaiiider  to  trustees  to  preserve  &c.; 

Cases,  434.  remainder  to  the  first  and  other  sons  of  ii.  H.,  in  tail  male ; 
with  similar  remainders  to  ^.  D.  H.,  another  son  of  J2.  H., 
and  to  his  first  and  other  sons.  The  will  then  proceeded 
thus :  "  and,  in  default  of  such  issue,  1  devise  the  same  pre- 

[  83  ]  mises  unto  such  person,  bearing  the  surname  of//,  as  shall 

be  the  male  relation  nearest  in  blood  to  the  said  R.  H.,  and 
to  his  heirs  for  ever."  It  was  held  that  the  interest  under 
the  ultimate  limitation,  vested  at  the  death  of  the  testator, 
in  the  person  then  answering  that  description  ;  no  particu- 
lar time  being  pointed  out,  and  the  general  rule  requiring 

See  §  200-1.  tjiat  a  remainder  should  be  construed  to  be  vested,  rather 
than  contingent. 

SECTION  THE  THIRD. 

The  .Application  of  the  Rule  to  Legacies  and  Portions 
apparently  depending  on  S'u7'vivi?ig  Parents,  as  a  Con- 
dition Precedent. 

General  Principles. 

When  the  The  leaning  in  favour  of  vesting  is  of  course  215 

leaning  in      peculiarly  strong  where  the  opposite  construction 

favour  of       would  exclude  objects  who  have  a  strong  claim  upon  the 

vesting  is       author  of  the  instrument,  or  would  exclude  persons  without 

peculiarly      any  apparent  reason,  or  for  reasons  wliich  are  apparently 

strong.  absurd. 

It  is  so  where      This  is  the  case  where  the  interest  in  a  portion  216 

a  portion  or  or  legacy  is  primd  facie  made  to  depend  upon  the 

legacy  seems  person  interested  surviving  his  parents. 

to  depend  on      "A  gift  by  will,  however,"  as  a  learned  Judge(r/)  217 

survivingpa- has  justly  observed,  "differs  from  the  case  of  a 

rents.  

(a)  Sir  L.  Shadwell,  V.  C,  in  Tucker  v.  Harris,  5  Sim.  543. 


II.  2.  iii.]  OF  EXECUTORY  INTERESTS.  [§218—220.  [  83  ] 

trust  declared  by  a  settlement ;  because,  in  the  former,  there  See  §  241- 
is  no  supposition  [founded  in  the  nature  and  design  of  the  244. 
instrument,  or  on  any  valuable  consideration,]  that  any  per-  Distinction 
sons  can  be  intended  to  take,  except  those  who  are  described  between  a 
as  takers."  g'^t  by  will 

218  Still,  even  in  the  case  of  a  will,  there  is  a  strong  ^"d  a  trust 
antecedent  improbability  that  it  should  really  be  '^y  mettle- 
intended  that  the   survivorship  should  be  rcc[uisite   to  the  "it;nt. 
vesting,  so  that  tliough  the  party  may  have  attained  to  ma-  Loaning 
jority,  and  may  in  fact  have  married  and  founded  a  family,  against  con- 
yet  that  he  should  be  excluded  from  the  testator's  bounty,  struing  sur- 
merely  by  the  accidental  circumstance  of  his  dying  in  the  vivorship  a 
lifetime  of  his  parents  or  one  of  them.     This,  indeed,  is  a  pre-requisite, 
circumstance  which,  so  far  from  constituting  any  reason  for  [  ^^  J 
his  exclusion,  may  form  a  peculiarly  cogent  reason  why  his  ^^  strong, 
estate  should  the  rather  be  increased  by  the  testator's  bounty;  ^^'^"  '"  *"^ 
for  his  premature  decease  may  create  a  strong  necessity  for  case  of  a\\  ill. 
some  additional  means  of  support  for  the  family  he  may 

have  left  behind  him. 

219  But  in  the  case  of  a  marriage  settlement,  there  But  much 
is  not  only  this  strong  antecedent  improbability,  stronger  in 

but  there  is  also  a  violent  presumption  against  the  constru-  the  case  of  a 
ing  it  to  be  necessary  for  the  children  to  survive  their  parents,  marriageset- 
arising  from  the  nature  and  design  of  the  instrument,  as  one  tlcment. 
which  \va.s  prima  facie  intended  to  make  a  provision  for  a 
family,  and  from  the  character  of  the  objects,  M-ho  are  not 
volunteers,  as  in  the  case  of  a  will,  but  purchasers  for  valu- 
able consideration.     And  hence   the  leaning  in  favour  of 
vesting  without  regard  to  this  survivorship,  is  exceedingly 
strong  in  cases   of   portions   under   marriage   settlements. 
Thus— 

Specific  Rules. 

220  I.  Where,  according  to  the  terms  of  a  marriage  Where  one 
settlement,  the  raising  of  portions  is  made  to  de-  child  suv- 

pend  on  the  existence  of  children  or  a  child  at  the  death  of  vives,  and 

the  parents,  or  one  of  them,  as  the  case  may  be  ;  and  the  the  words 

words  import  a  condition  precedent,  which  not  only  renders  importing 

it  necessary  that  there  should  be  children  or  a  child  then  liv-  necessity  of 

ing,  but  apparently  manifests  an  intent  to  confine  the  gift  of  ^"'"^''^'"S''^'^^ 

portions  to  those  children  who  should  be  in  existence  at  that  construed 

time;  such  words  are  construed  not  according  to  their  spirit,  ^".^^.1^  ^. 

but  according  to  the  letter;  so  that  if  there  happens  to  be  a     !     ,•  /    , 
,.,,,..       ° ,  .1    .  .•  .1  1       r         .•  who  did  not 

child  livmg  at  that  time,  the  words  of  contingency,  even  survive 

allowing   them   to   amount   to  a  condition   precedent,  are  ^^     ,    * 

regarded  as  satisfied;  and  not  only  is  the  child  then  living         '^ 

entitled  to  a  portion,  but  also  the  representatives  of  those 

who  died  before,  provided  they  lived  till  the  other  period  to 

which  the  vesting  was  postponed. 


[  84  ]  II.  2.  iii.]  AN  ORIGINAL  VIEW  [§220. 

Ifopev.Lord  The  trusts  of  a  term,  limited  by  a  marriage  settlement, 
Clifden,  6  after  a  life  estate  to  E.  B.,  the  husband,  and  a  term  for 
Yes.  498.  securing  a  jointure,  were  declared  by  the  settlement  to  be, 
in  case  there  should  be  any  children  hving  at  the  decease  of 
E.  B.,  or  afterwards  born,  except  the  heir  male,  then,  the 
[  85  ]  trustees  should  raise  5000/.  for  the  portions  of  all  and  every 

the  children,  except  an  eldest  or  only  son,  to  be  paid  at  21, 
or  marriage,  which  should  first  happen  after  the  decease  of 
E.  B.:  and  if  any  of  the  younger  sons  should  attain  21,  or 
any  of  the  daughters  should  attain  21,  or  marry,  in  the  life- 
time of  E.  B.,  then,  the  portions  should  be  paid  within  three 
months  after  the  decease  of  E.  B. ,  unless  E.  B.  should  direct 
the  same  to  be  raised  in  his  life.  Provided  that,  if  any  of 
the  children  entitled  to  the  portions,  should  die,  or  become 
an  eldest  or  only  son,  before  his,  her,  or  their  portions,  should 
become  payable,  the  portions  should  go  to  the  survivors. 
Provided  also,  that  in  case  all  the  children  entitled  to  por- 
tions, should  die  before  any  of  their  portions  should  be  pay- 
able, then,  the  said  sum,  or  so  much  thereof  as  should  not 
be  then  raised,  should  not  be  raised,  but  should  cease. 
There  were  four  children;  of  whom  M.  married,  and  died 
in  the  lifetime  of  E.  B.,  leaving  three  sons.  Lord  Eldon,  C, 
lield,  that  M.  took  a  vested  interest.  His  Lordship  observed, 
that  the  Courts,  feeling  it  not  to  be  a  probable  intention  in  a 
parent,  that,  though  his  child  had  attained  21,  or  come  to 
marriageable  years,  and  formed  a  family,  yet,  because  that 
child  dies  in  the  parent's  life,  the  descendants  should  have 
nothing,  have  thought  themselves  at  liberty  to  manage  the 
construction  of  the  words,  as  they  would  not  in  the  case  of 
a  stranger  (6  Ves.  507);  and  that  the  cases  authorized  him 
to  struggle  with  language  for  that  purpose.  (lb.  509.)  His 
Lordship  added,  in  effect,  that  if  the  first  words  constituted 
a  condition  precedent,  that  condition  had  been  fulfilled,  for 
there  were  some  children  living  at  the  death  of  the  father; 
and  even  if  there  had  not  been  any,  still  the  case  of  Wood- 
cock V.  The  Duke  of  Dorset  would  have  been  a  direct  answer 
to  that  objection.  [lb.  510.) 
King  V.  In  another  case,  there  was  a  trust  for  raising  portions,  in 

Hakey9Vcs.  case  it  should  happen  that  the  husband  and  wife  should,  at 
438.  the  death  of  the  survivor  of  them,  leave  any  child  or  chil- 

dren. Two  sons  survived  both  parents.  Two  others  at- 
tained 21,  but  died  in  the  lifetime  of  the  surviving  parent. 
Sir  W.  Grant,  M.  R.,  held,  that  they  took  vested  interests ; 
inasmuch  as  the  contingency  had  happened  on  which  the 
[  86  ]  trust  was  to  arise  ;  and  in  that  part  of  the  clause  which  pro- 

vided for  the  case  of  "  more  than  one  child  who  should  live 
to  attain  21,"  the  word  "child  "  was  totally  unqualified  by 
any  expression,  restraining  it  to  children  who  should  survive 
their  parents. 


II.  2.  iii.]     OF  EXECUTORY  INTERESTS.  [§221.         [  8G  ] 

So,  where  a  marriage  settlement  contained  the  following  Howgravev. 
passage:  "and  from  and  after  the  decease  of  the  snrvivor  Cartitr^SY. 
of  them  the  said  P.  IV.  and  E.,  his  wife,  in  case  there  shall  ^^  1^-  "^9- 
be  any  child  or  children  of  their  two  bodies  living,  who 
shall  be  of  the  age  of  21,  or  who  shall  after  arrive  at  such 
age,  born  in  the  lifetime  of  the  said  P.  IV.,  or  at'ter  his  de- 
cease;  then,  upon  trust,  that  they  the  said  trustees  shall 
transfer  20,000/.  unto  such  child  or  children  of  the  said  P. 
W.  and  E.  his  wife,  at  their  respective  ages  of  21  years,  in 
such  proportions,"  &c.  There  were  two  children ;  a  son, 
who  survived  liis  fother,  but  died  in  the  lifetime  of  his  mo- 
ther, after  having  attained  21;  and  a  daughter,  who  sur- 
vived both  parents,  and  attained  21.  Sir  W.  Grant,  M.  R., 
held,  that  the  son  was  entitled  to  the  sums  which  the  mother 
in  her  lifetime  appointed  to  him.  He  observed,  that  the 
condition  in  the  first  part  of  the  clause  was  fulfilled,  as  there 
was  a  child  living,  who  had  attained  21,  at  the  death  of  the 
survivor  of  both  parents.  And,  as  to  the  other  part  of  the 
clause,  the  eliect  of  it  depended  entirely  upon  the  word 
"such,"  which,  in  other  passages,  was  (as  he  considered)  so 
absurdly  and  unmeaningly  applied,  that  it  was  evident  that 
the  parties  had  no  definite  notion  of  the  effect  of  its  intro- 
duction. (3  V.  &.  B.  88,  89.)  And  he  remarked,  that  the 
condition  of  survivorship  was  confined  to  a  survivorship  of 
the  wife  in  a  preceding  passage,  and  entirely  dropped  in 

another.     (76.  91.) 
221  II.   And  if,  in  the  case  supposed,  there  does  not  ^-17^  "° 

happen  to  be  children  or  a  child  living  at  the  death  ^"'''^  ^^' 
of  the  parents,  or  one  of  them,  as  the  case  may  be  ;  yet,  if  ^^^^^^^  -^^ 
there  is  a  gift  of  portions  to  the  children  generally,  and  not  p^^l^j^j  ^^^ 
merely  to  such  as  siiould  be  then  living ;  or  if,  in  the  clause  Uggyit  °  fgur- 
of  cesser,  or  in  the  limitation  over,  or  in  any  other  part  of  ^j^.j^^  ^^^ 
the  settlement,  there  is  any  thing  which  would  in  itself  ren-  constt-ued  so 
der  it  in  the  slightest  degree  doubtful,  whether  it  was  really  ^^  to  admit 
intended  to  confine  the  giftof  portions  to  surviving  children;  ,h„se  ^^ho 
in  such  cases  the  words  of  contingency  are  not  construed  as  (jij  not  sur- 
a  condition  precedent,  but  as  merely  expressive  of  one  state  [  87  ] 

of  circumstances  in  which  they  are  to  be  raised,  without  im-  vive. 
plying  that  they  are  not  to  be  raised  in  any  other.  See  §  13. 

Estates  were  conveyed  by  marriage  settlement  to  trustees  Powis  v. 
and  their  heirs,  in  trust,  after  the  decease  of  the  husband,  in  Burdett,  9 
case  he  sliould  leave  one  or  more  daughter  or  daughters.  Yes.  428. 
younger  son  or  sons,  to  raise  12,000/.  for  the  portions  or  SeealsoPer- 
fortunes  of  such  daughter  &c.,  to  be  paid  according  to  ap-/ec/ v.  Lord 
pointment,and,  in  default  of  appointment,  at  21  or  marriage.  Curzon,b 
And  it  was  provided,  that  in  case  the  husband  should  think  Mad.  447, 
proper  that  any  portion  or  portions  of  any  such  daughter  444. 
&c.,  should  be  raised  and  paid  during  his  lifetime,  it  should 
be  lawful  so  to  do.     Then  followed  a  proviso,  that  in  case 


[  S7  ]  II.  2.  iii.] 


AN  ORIGINAL  VIEW 


[§222. 


Where  no 
child  sur- 
[88   ] 
vives,  and 
none  are  ad' 
mitted. 


HotchTcin  V. 
Hvmfrey, 
2  iMad.  65. 


Whatford  v 
Moore,  7 
Sim.  .574 ; 
S.  C.  3  M. 
&  C.  270. 


of  the  death  of  any  of  the  said  daughters  &c.  before  their 
portions  should  become  payable,  such  portions  should  be 
paid  to  the  survivors  of  such  &.C.;  with  a  furtiier  proviso, 
that  if  there  should  be  no  such  younger  son  &c.,  or  all  should 
die  before  their  portions  should  become  payable,  then,  no 
part  should  be  raised,  or  if  raised,  it  should  be  reinvested 
in  land.  There  was  only  one  younger  child,  who  attained 
21,  but  died  in  his  father's  lifetime:  so  that  the  contingency, 
on  which,  according  to  the  express  words,  the  trust  was  to 
arise,  did  not  happen.  Lord  Eldon,  C,  upon  the  authority 
of  preceding  cases,  held,  that  he  took  a  vested  interest;  ob- 
serving, that  upon  the  other  construction,  if  there  had  been 
six  younger  sons  and  seven  daughters,  and  twelve  had  died, 
leaving  families,  those  twelve  families  who  had  lost  their 
parents,  would  have  been  without  any  provision,  and  the 
thirteenth  child  would  take  what  probably  was  intended  to 
be  shared  among  all,  at  the  age  of  21,  or  tlie  marriage  of  the 
daughters;  (9  Ves,  434;)  and  that  if  the  twelve  parts  had 
been  raised  and  paid  under  the  clause  of  advancement,  yet, 
under  the  words  ''such  daughter"  &c.  connected  with  the 
expression  ''leave,''  the  thirteenth  child  would  liave  a  right 
to  insist  that  what  had  been  advanced  was  to  be  called 
back.     {lb.  435.) 

III.  But  if,  in  the  case  supposed,  there  does  not  222 

happen  to  be  any  children  or  a  child  then  living, 
and  there  is  no  direct  gift  to  the  children  generally,  but 
merely  to  such  as  should  be  then  living,  and  there  is  nothing 
to  render  it  in  tlie  slightest  degree  doubtful,  whether  it  was 
really  intended  to  confine  the  gift  of  portions  to  surviving 
children  ;  there,  no  child  who  does  not  survive  both  pa- 
rents, or  one  of  them,  as  the  case  may  be,  will  be  entitled  to 
a  portion. 

Where  a  marriage  settlement  provided,  that  in  case  the 
intended  husband  and  wife  should  have  a  daughter  or 
daughters,  or  younger  sons  or  son,  that  should  be  living  at 
the  time  of  the  decease  of  the  survivor  of  them,  the  trustees 
should  raise  a  certain  sum  for  the  portions  of  such  daughter 
or  daughters,  or  younger  son  or  sons;  the  children  who  sur- 
vived both  parents  were  alone  entitled. 

And  in  another  case.  Sir  L.  Shadwcll,  V.  C,  held,  that 
none  were  intended  to  take  portions  under  the  marriage  set- 
tlement, except  those  who  should  survive  both  parents ;  and 
this  decision  was  affirmed  by  Lord  Cottenham,  C.  And, 
indeed,  it  was  a  case  in  which  there  does  not  seem  to  have 
been  a  single  expression  in  tlic  settlement  to  favour  a  con- 
trary construction. 


II.  3.  i.J  OF  EXECUTORY  INTERESTS.  [§222a— 22  1.         [  88  ] 


SECTION  THE  FOURTH. 

The  Jlpplication  of  the  Rule  to  subsequent  Interests,  Ihnit- 
ed  after  Interests  depending  on  a  Condition  Precedent. 

222a  "Though  the  vesting  of  a  preceding  interest  is 

suspended  upon  a  condition  precedent,  and  such 
condition,  according  to  the  grammatical  construction,  may- 
be fairly  regarded  as  equally  extending,  but  does  not  neces- 
sarily extend,  to  a  subsequent  interest  in  remainder;  it  will 
not  be  conslrued  to  extend  thereto,  unless  there  is  some  suf- 
ficient reason,  indcjifudenlly  of  the  doubtful  grammatical 
construction,  for  thinking  that  it  extends  to  the  subse(picnt 
interest. (a) 


CHAPTER  THE  THIRD.  [  8.9  J 

OF  THE  CONSTRUING  AN  INTEREST   TO  BE  ABSOLUTE  RATHER 
THAN  DEFEASIBLE. 


SECTION  THE  FIRST. 
*/l  general  Rule  suggested,  with  the  Reasons  thereof 

223  It  would  appear  to  be  a  general  rule,  dcducible  The  rule 
from  principle,  and  from  actual  decisions,  though  suggested. 

not  enunciated  hy  authority,  that,  in  doubtful  cases,  an  in- 
terest, whether  vested  or  contingent,  ought,  if  possible,  to 
be  construed  as  absolute  or  indefeasible,  in  the  first  instance,  Scc§  97,98, 
rather  than  as  defeasible:  but  if  it  cannot  be  construed  to 
be  an  absolute  interest  in  the  first  instance,  that,  at  all  events, 
such  a  construction  ought  to  be  put  upon  the  conditional 
expressions  which  render  it  defeasible,  as  to  confine  their 
operation  to  as  early  a  period  as  may  be;  so  that  it  may 
become  an  absolute  interest  as  soon  as  it  can  fairly  be  con- 
sidered to  be  so.     For, 

224  1.  This  would  seem  clearly  dcducible  from  the  Oriiousnoss 
well-known  rule,  that  conditions  are  odious,  and  ofconditions. 

shall  be  construed  strictly;  a  rule  which  would  appear  to 
apply  to  those  conditions  which  are  termed  in  a  preceding 

(a)  See  Napper  v.  Sanders,  Hutt.  118,  as  stalcil,  Fearne,  223,  21;  Lethievl- 
Her  V.  Tracy,  3  Atk.  774  ;  Amb.  Rep.  204,  as  stated,  Fearne,  225 ;  Jlorlon  v. 
WidUaker,  1  D.  &  1^.  346,  as  stated,  Fearne,  235. 
Vol.  II.— 10 


[  89  J  II.  3.  ii.]  AN  ORIGINAL  VIEW         [§225—227. 

See  §  12-22.  page  mixed  conditions,  as  well  as  to  conditions  which  are 
simply  destructive.  For,  if  it  applies  to  conditions  subse- 
quent which  are  simply  destructive  and  upon  which  an 
estate  is  to  be  defeated,  and  made  to  revert  to  the  heir,  who 
is  favoured  by  the  law;  it  would  seem  to  apply  also  to  those 
conditions  which  are  both  destructive  and  creative,  and  upon 
which  an  estate  is  to  be  devested,  and  a  new  estate  is  to 
arise  in  favour  of  another  person,  by  way  of  conditional 
See  §  148-9.  limitation. 

Leanin"  in          2.  "I'he  person  claiming:  under  a  prior  limitation,  225 

favour ofpri-  and  his  children,  being  of  course  the  primary  ob- 
mary  ob-       jects  of  the  grantor's  or  testator's  bounty  or  consideration, 
jects.  and  the  persons  claiming  under  the  limitation  over  being 

only  secondary  objects  of  such  bounty  or  consideration  ;  it 
[  90  ]  is  of  course  reasonable  to  lean  in  favour  of  the  primary  ob- 

jects, by  construing  their  interest  to  be  absolute  in  the  first 
instance,  or  as  early  as  by  fair  construction  it  can  be  consid- 
ered to  be  so,  rather  than  to  lean  in  favour  of  the  secondary 
objects,  by  construing  the  interest  of  the  primary  objects  to 
be  defeasible. 
Leaning  in         3.   The  law  favours  the  free  uncontrolled   use  226 

favourof  free  and  enjoyment  of  property,  and  the  power  of  alien- 
enjoyment      ation ;  whereas  the  defeasible  quality  of  an  interest  tends 
and  aliena-    ^^ost  materially  to  abridge  both. 

tion  of  pro-         'pj^g  following  case  may  perhaps  be  not  unaptly  cited  as 
perty.  j,-,  gome  degree  connected  with  the  general  principles  above 

Wealeley  d.  mentioned.     A  testator, after  giving  his  eldest  daughter  five 
Knight  V.      shillings,  and  five  pounds  to  his  second  daughter  M.,  gave  a 
Russ-,  7  D.  leasehold  to  his  youngest  daughter.^.;  but  if  she  should  die 
&  E.  322.      without  having  child  or  children,  then  he  willed  that  the 
premises  should  remain  to  M.,  and,  after  her  death,  to  her 
children.     Ji.  had  three  children,  who  all  died  in  her  life- 
time.    It  was  held,  that  the  word  "  having"  did  not  mean 
'<  leaving;"  and  consequently  that  the  devise  over  did  not 
take  effect;  because,  otherwise,  if./?,  had  children  who  died 
in  her  lifetime,  leaving  issue,  the  estate  would  have  gone 
from  that  issue  to  Mury  and  her  issue;  whereas  it  was  the 
general  intention  that  the  flimily  of./?,  should  be  first  pro- 
vided for.     ,/i.  was  the  favourite  daughter  of  the  testator, 
the  great  object  of  his  bounty. 

SECTION  THE  SECOND. 

The  ^Application  of  the  Bule  to  Bequests  to  a   Class  of 

Persons. 

WhereanafT.      L  Where  one  aggregate  sum  of  money  is  be-  227 

gregate  sum  queathed  to  the  children  of  any  person  collectively, 
is  given  to  a  as  a  class,  without  any  limitation  over  on  failure  of  issue  of 
person's         such  person,  or  "some  other  clear  indication  of  a  contrary 


II.  3.  ii.]  OF  EXECUTORY  INTERESTS.  [§228— 230a.  [   90  ] 

intent(«),  all  the  children,  as  well  by  a  subsequent  marriage  cliildr<n,and 
as  by  the  marriage  subsisting  or  in  ooiileniplation  at  the  date  there  is  no 
of  tlie  will,  who  are  b(»rn  at  tlie  period  when  the  share  or  limiiation 
shares  of  any  one  or  more  of  them  ought  to  be  ascertained  over  on  fail- 
and  paid,  are  admitted  to  a  participation  in  the  fund.  And  ure  of  his  is- 
it  is  imnmterial  whether  that  period  be  the  death  of  the  tes-  sue,  or  oiher 
tator,  or  the  death  of  a  person  taking  a  prior  interest  in  the  [  ^1   ] 

fund,  or  the  attainment  of  a  certain  age  by  the  eldest  of  P^^'^ic"'^'"'"* 
the  children,  or,  in  case   payment  is  expressly  postponed  "'^'^^"?"  °^ 
till  that  period,  the  attainment  of  a  certain  age  by  the  young-  '"Mention, 
est  child. 

228  But  those  cliildren  who  are  born  after  that  period, 
are  excluded;  because  it  would  be  highly  inconve- 
nient if  the  child  or  cliildren  whose  share  or  shares  is  or  are 

ascertained  and  paid,  should   be  liable  to  refund  a 

229  part  of  the  money  upon  a  mere  uncertainty.  Such 
a  liability  would,  on  the  one  hand,  be  a  source  of 
litigation,  and  often  of  fruitless  litigation,  where  the 

230  children  whose  shares  had  been  paid,  had  spent  the 
money.     And,  on  the  other  hand,  it  would  so  fetter 

the  possession  of  the  money,  where  they  acted  under  a  sense 
of  their  liability  to  refund  a  part,  as  to  render  the  posses- 
sion scarcely  more  desirable  than  the  mere  receipt  of  the  in- 
come. 
230a  1.  In  cases  where  "the  period  of  payment  was  the 

death  of  the  testator.(aa) — A  testator  gave  legacies  HiUv. 
in  trust  for  such  of  the  children  of  his  daughter,  Sarah  Hi//,  Chapman,  1 
as  were  then  in  existence,  by  name,  to  be  transferred  to  the  Ves.  Jun. 
sons  at  23,  to  the  daughters  at  21  ;  provided,  that  if  any  of  405. 
his  said  grandchildren  should  die  before  their  portions  should 
be  transferable  or  payable,  their  portions  sliould  belong  to 
all  the  children  of  his  said  daughter   living  at  their  death. 
He  then  gave  all  the  rest  and  residue  of  his  estate  and  effects, 
whatsoever  and  wheresoever,  in  trust  for  all  his  grandchil- 
dren by  his  said  daughter,  to  be  applied  for  their  benefit  as 
aforesaid.     And  afterwards,  by  a  codicil,  he  gave  some  an- 
nuities for  life,  and  directed  that  1000/.  should  be  set  apart, 
after  his   decease,  to  pay   the  same.     A  child  of  .S*.  H.  was 
born  after  the  death  of  the  testator,  but  before  the   death  of 
the  annuitants.     I^ord  Thin-low,  C,  held,  that  that  child  took 
nothing,  either  in  the  residue,  exclusive  of  the  1000/.,  or  in 
tlie  1000/.,  after  it  had   fallen  into  the  residue  on  the  death 
of  the  annuitants.     His  lordship  said,  that  if  he  imputed  to 
the  testator  a  view  of  providing  for  all  the  children,  he  should 

(a)  Sec  1  Rop.  Leg.  29,  6cc. 

{aa)  See  Roberts  v.  Higman,  1  B.  C.  C.  532,  in  note ;  Heathe  v.  Ileathe,  2 
Alk.  122  ;  and  Coleman  v.  Seymour,  2  Ves.  Sen.  209;  referred  to  1  Rop.  Leg. 
34,  eii.  by  White. 


[  92  ]  II.  3.  ii.]  AN  ORIGINAL  VIEW  [§230b. 

contradict  a  rule  which  had  stood  too  long  to  be  shaken,  but 
which,  when  fust  raised,  went  satis  aj-hi trio,  because  the  in- 
tention might  go  to  all  possible  children,  as  in  marriage  set- 
tlements; and  to  impute  to  him  such  a  restrained  intention, 
was  rather  a  forced  interpretation, and  generally  against  the 
intention  at  the  time.  That  it  would  be  repugnant  to  say- 
one  part  of  the  residue  went  one  way,  the  other  part  ano- 
ther. That  the  whole  inference  which  excluded  the  after- 
born  child,  was,  the  circumstance  of  a  distribution  being  ne- 
cessary, ex  vi  terininoriim,  upon  the  death  of  the  testator, 
as  admitted  by  the  counsel  for  that  ciiild. 
Davidson  v.  And  so,  where  a  testator  bequeathed  to  the  children  of  his 
Dallas,  14  brother,  3000/.,  to  be  equally  divided  between  them;  and  if 
Ves,  576.  either  of  them  should  die  before  21,  their  share  to  go  to  the 
survivors.  Lord  Eldon,  C,  held  that  tiiis  was  an  imme- 
diate legacy  to  the  children  living  at  the  testator's  death,  in 
whom  it  vested  at  that  time,  with  a  limitation  over,  if 
either  of  tiiem  should  die  before,  21  to  the  survivors;  and 
that  the  children  born  after  the  testator's  death  were  ex- 
cluded. 

2.  In  cases  where  ""the  period  for  payment  was         230b 
Taylor  v.      tlie  death  of  the  tenant  for  life.(/y) — A  testator  gave 
Langford,  2  the  interest  of  the  residue  to  his  two  sisters,  for  their  lives  ; 
Ves.  Jun.       and,  after  their  decease,  the  principal  to  be  paid  to  their 
118.  children,  share  and  share  alike  ;  but  whichever  sister  died  be- 

fore the  other,  then, the  share  which  was  so  paid  to  her,  should 
be  paid  to  her  children,  in  equal  proportions;  but,  if  such 
sister  so  dying  should  leave  no  children,  then,  the  interest 
and  produce  to  be  paid  to  the  survivor,  for  her  life,  as  afore- 
said. One  sister  died  without  cliildren  ;  the  other  had  two 
children  at  the  death  of  the  testator,  and  two  others  after- 
[  93  ]  wards.     Lord  Loughborough,  C,  said,  that  he  could  not 

control  the  general  words  by  the  strange  expressions  that 
followed;  and  that  the  property  vested  in  all  the  children. 
Godfrey  v.         In  another  case,  a  testator,  after  giving  several  life   an- 
Davis,HVes.  unities,  directed,  that  the   first  arnmity  that  should   drop, 
Jun.  43.         should  devolve  upon  the  eldest  child,  for  life,  of  IV.  H.;  and 
he  directed,  that  as  the  annuities  dropped,  their  amount  was 
to  go  to  the  increase  of  the  annuities  of  the  survivors;  and 
that  when  the  said  annuitants  were  all  dead,  the  whole  pro- 
perty should  devolve  upon  the  heirs  male  of  F.  F.     W.  H. 

(b)  Ellison  V.  Airey,  1  Ves.  Sen.  Ill  ;  Attorney  Gen.  v.  Crispin,  1  B.  C. 
C.  386  ;  Congreve  v.  Congreve,  1  B.  C.  C.  530 ;  Devisme  v.  Mello,  1  B.  C.  C. 
537,  as  stated,  1  Hop.  Leg.  48 — 50.  Mr.  Roper  also  refers  to  Graves  v.  Boyle, 
1  Atk.  509  ;  Havghton  v.  Harrison,  2  Atk.  329 ;  Middleton  v.  Messenger,  5 
Ves.  136 ;  Puhford  v.  Hunter,  3.  li.  C.  C.  417  ;  Ay  ton  v.  Ay  ton,  1  Cox.  327  ; 
Paul  V.  Compton,  8  Ves.  375 ;  Tebbs  v.  Carpenter,  1  Mud.  290 ;  Crone  v. 
Odell,  1  Ball  &  Beat.  449. 


II.  3.  ii.J      OF  EXECUTORY  INTERESTS.         [§230c.  [  93  ] 

liad  no  Ic^ilimatc  child  at  llic  death  of  tlie  annuitant  who 
died  lirst.^  'i'hc  Master  of  the  Rolls  held,  that  an  alterhorn 
legitimate  child  was  not  entitled,  lint  this  decision  was 
grounded  upon  the  plain  intention  of  the  testator,  that  mi- 
less  there  were  a  child  of  TF.  II.  at  the  death  of  the  annui- 
tant, the  annuity  should  accrue  to  the  survivors;  and  that 
the  heirs  of  P.  F.  should  take  on  the  deaths  of  all  the  annui- 
tants, instead  of  wailing  till  the  death  of  JF.  II,  as  might  be 
necessary  if  the  other  construction  were  allowed. 

Again  ;  a  testator  devised  a  copyhold  estate,  in  trust  to  Walker  y. 
sell  and  apply  the  interest  of  the  produce  for  //.  JF,  for  life;  Shore,  15 
and,  after  her  decease,  to  divide  the  principal  amono;  the  Ves.  122. 
children  of  T.  IF.  and  R.    W.     And  he  bequeathed  Bank 
stock,  reverting  to  him  on  the  death  of  M  B.,  upon  trust  to 
make  sale  thereof,  in  case  the  same  should  be  in  his  name 
at  his  decease,  and  if  not,  as  soon  as  M.  B.  should  die  ;  and 
to  apply  the  money  equally  among  the  children  of   T.  IF. 
and  li.   IF.     II  IF.  was  dead,  but  M.  B.  was  living.     It 
was  urged,  that  the  testator  intended  the  same  persons  to 
take  both  funds;  and  that  the  only  mode  of  giving  them  to 
the  same  persons,  was,  by  giving  them  to  those  only  who 
were  born  before  the  testator's  death,  instead  of  distributing 
it  upon  the  deaths  of  the  respective  tenants  for  life.     Lord 
Eldon,  C,  admitted  that  the  same  persons  were  intended  to 
take  both  funds,  yet  thought  it  impossible  not  to  apply  to  the 
fund  to  be  distributed  upon  the  death  of  M.  B.,  the  rule  that 
must  be  applied  to  the  copyhold  estate;  and  that  the  dis- 
tinction which  was  taken  as  to  the  life  interest  in  tiie  Bank 
stock  not  having  been  created  by  the  testator  himself,  was  [  9-1  ] 

not  to  be  regarded. 
230c  3.  In  cases  where  *the  attainment  of  a  certain 

age  has  been  the  period  for  payment. (c) — A  testator  Iloste  y.  ^ 
gave  the  residue  of  his  personal  estate,  in  trust  to  apply  the  /Vu//,3\es. 
interest,  or  a  sufficient  part  thereof,  for  the  maintenance  of  '^^'•^• 
all  the  children  of  Z^.  H.,  until  they  should  severally  and  re- 
spectively attain  16,  and  then  to  transfer  the  principal  to 
them  when  and  as  they  should  attain  16.     Lord  Lough- 
borough, C,  held,  that  those  born  after  the  eldest  attained 
IG,  were  excluded  on  the  ground  of  convenience. 

In  another  case  the  period  was  the  attainment  of  21  by  Barrington 
the  eldest,  or  marriage,  or  the  death  of  the  child  under  21,  v.  Tristram 
leaving  issue  ;  and  Lord  Eldon,  C,  said,  that  the  rule  of  the  0  Ves.  3 14. 
Court  required  that  all  the  children  should  take  who  come  gee  Bhasc 
in  esse  before  there  is  a  necessity  for  determining  the  share  v.  Burgh,  2 
of  any  child;  that  this  rule  had  gone  upon  an  an.xiety  to  Bcav.  221, 
provide  for  as  many  children  as  possible  with  convenience,  stated  §  313. 


(c)  Gihnore  v.  Severn,  1  B.  C.  C.  582,  cd.  by  Belt ;  and  Prescott  v.  Long,  2 
Ves.  Jiui.  G90  ;  as  stated,  1  Rop.  Leg.  41,  42,  ed.  by  White. 


[  94  ]  II.  3.  ii.]  AN  ORIGINAL  VIEW  [§231, 232. 

And  therefore  he  held,  (hat  children  by  another  hnsband, 

with  whom  the  party  intermarried  after  the  date  of  the  will, 

were  entitled,  though  His  Lordship  said,  his  private  opinion 

was,  that  the  testator  never  thought  of  her  marrying  again; 

and  though,  according  to  that  construction,  the  limitation 

over  was  too  remote. 

Wliithread        Where  a  bequest  was  made  in  trust  to  pay  to  the  children 

V.  Lord  St..   of  ./f.,  born  or  to  be  born,  as  many  as  there  might  be,  at  21, 

John,  10        or  marriage;  with  a  clause  of  survivorship;  and  a  limita- 

Ycs.  152.       tion  over,  upon  tiie  death  of  all  before  21,  or  marriage;  Lord 

Eldon,  C,  held,  that,  ex  necessitate,  those   born  after  the 

eldest  attained  21,  were  excluded. 

Gilbert  v.  And  where  a  residue  was  bequeathed  to  ^.,  and   all  the 

Boor7nan,ll  other  children  thereafter  to  be  born  of  B.,  at  21  ;  Sir  W. 

Ves.  238.       Grant,  M.  R.,  made  a  similar  decree. 

Claris  V.  And  so  where  a  testator  bequeathed  a  fund  in  trust  for.,^., 

Clarke,  8      for  life  ;  and,  after  her  death,  in  trust  for  all  and  every  the 
[  95  ]  children  of  ^.  and  C.  who  should   attain  21.     Sir  L.  Shad- 

Sim.  59.         well,  V.  C,  held,  that  all  the  children  of  B.  and  C.  who  were 
born  before  the  eldest  attained  21,  though  after  ^.'s  death, 
would  be  entitled  to  a  share  on  attaining  21;  the  learned 
Judge  observing,  that  otherwise  seven  children  might  be 
born  in  the  lifetime  of  the  tenant  for  life,  and  then  another 
might  be  born  and  live  to  attain  21  ;  but  the  seven  might 
die  under  that  age,  and  then  the  only  child  who  attained  21, 
would  be  excluded. 
Hughes  V,         In  another  case,  the  period  fixed  for  distribution  of  real 
Hughes,  14  and  personal  estate,  was,  the  majority  of  the  youngest  grand- 
Ves.  256.      child;  and  all  who  were  born  before  that  time, and  were  then 
living,  and  the  children  of  those  who  were  dead  were  includ- 
ed, according  to  the  express  terms  of  the  will. 
Whereaspe-      II.  But  '^  where  a  specific  sum  is  bequeathed  to  231 

eific  sum  is     each  of  the  children,  whether  born  or  to  be  born, 
given  to  none  are  excluded. (^/)     For.  in  this  case,  the  reason  for  ex- 

each,  eluding  some  of  the  class  does  not  arise;  because  the  sum 

which  each  child  is  to  take,  being  fixed  by  the  testator  him- 
self, it  is  never  necessary  to  determine  the  number  who  are 
to  take,  in  order  to  ascertain  the  share  or  shares  of  any  one 
or  more  of  them. 
Where  there      HI.  Again, ''if  there  is  a  limitation  over  in  de-  232 

is  a  limita-  fault  of  issue  of  the  parent,  then  even  those  who 
tion  over  in  j^^e  born  after  the  period  for  payment  will  be  admitted,  be- 
default  of  cause  it  is  in  that  case  positively  certain  that  the  testator 
issue  of  the  intended  that  all  should  take,  however  inconvenient  such 
parent,  or  ^  construction  might  be ;  since,  by  the  express  words  of 
some  other  ^j^^  ^^jj.  ^j^^  ^^^^  -^  ^,  ^^  ^^^^  -^^  default  of  issue 
mdication  of  '  jo 

{d)  See  Difflis  v.  Goldschmidt,  19  Ves.  566. 


II.  3.  ii.]     OF  EXECUTORY  INTERESTS.  [§233,234.         [  95  ] 

233  of  the  parent. (e)     The  cliiltlren,  however,  who  arc  an  inlcnt  that 
born  after  that  period,  will  not  be  entitled  to  by-  all  should 

234  gone  interest.     And  the  same  will  be  the  case  in  take, 
other  instances  where  the  testator  plainly  shows 

his  intention  that  all  the  children  should  take. 

A  testator  gave  his  residuary  personal  estate,  upon  trust  MiUsv.Nor- 
for  the  children  of  his  two  daughters,  E.  M.  and  M.  N.,  ris,  5  Vcs. 
equally,  payable  at  21,  or  marriage;  with  a  limitation  over  [  96  ] 

upon  failure  of  issue  oi  E.  M.  and  M.  N.  in  their  lifetime.  BOS. 
Lord  Loughborongh,  C,  held,  that,  having  regard  to  the 
Hmitation  over,  a  child  who  was  born  after  the  eldest  child 
attained  21,  was  to  be  admitted,  but  that  such  child  was  not 
entitled  to  claim  bygone  interest. 

In  another  case,  a  testator  gave  real  and  personal  estate  Scoitv.Earl 
to  trustees  to  accumulate  the  rents  &c.,for  twenty  years  after  of  Scarbo- 
his  decease,  and,  after  certain  payments,  to  stand  possessed  rough,  1 
of  the  accumulated  fund,  in  trust  for  all  the  children  of  .^.,  Beav.  154. 
B.  and  C,  then  born,  or  who  should  thereafter  be  born, 
during  the  lifetime  of  their  respective  parents,  and  who,  be- 
ing sons,  should  attain  21,  or,  being  daughters,  should  attain 
21  or  marry;  and  whether  born  or  unborn,  when  any  other 
of  them  should  attain  the  age  or  time  aforesaid,  and  their 
respective   executors,   administrators,   or   assigns.     At   the 
expiration  of  the  twenty  years,  there  were  several  children 
of  ^.  who  had  attained  21,  but  .^.  and  B.  were  still  living, 
In  this  case,  both  the  accumulation  and  the  vesting  were 
within  the  prescribed  limits ;   the  accumulation  being  con- 
fined to  20  years  from  the  testator's  death,  and  the  vesting 
to  a  distinct  period  of  21  years  from  the  expiration  of  lives 
m  being.    The  diiticulty,  as  Lord  Langdale,  M.  R.,  observed, 
arose  from  this:  that  the  will  included  children  to  be  born 
at  any  lime  during  the  lives  of  their  parents,  and  yet  directed 
distribution  at  the  end  of  20  years  from  the  testator's  death, 
when  the  parents  were  living,  and  might  have  more  chil- 
dren.   And  His  Lordship  observed,  that  had  it  not  been  for 
the  words  "during  the  lifetime  of  their  respective  parents," 
he  thought  it  would  have  followed  from  the  cases  cited,  that 
the  words  "  to  be  born,"  would,  for  convenience,  be  restrict- 
ed to  grandchildren  to  be  born  before  the  period  of  distribu- 
tion.    That,  in  the  principal  case,  however,  he  was  of  opin- 
ion that  the  children  of  B.,  who  were  living  at  the  end  of  the 
twenty  years,  took  vested  interests  in  their  shares,  subject  to 
partial  devestment  and  diminution  in  the  event  of  other  ob- 
jects coming  into  existence ;  and  that  until  such  devestment 
or  diminution,  the  children  who  had  vested  interests,  were 
entitled  to  the  income  of  the  accumulated  fund. 


(e)  See  Shepherd  v.  Ingram,  Ambl.  448  ;  and  S.  C.  nom.  Gibson  v.  Rogers^ 
1  Ves.  Sen.  485,  as  stated,  1  Rop.  Leg.  37. 


[  97  ]  II.  3.  iii.]  AN  ORIGINAL  VIEW  [§235,236. 


SECTION  THE  THIRD. 

The  Application  of  the  Rule  to  Devises  and  Bequcsis 
where  there  is  a  Limitation  over  in  case  of  the  Death 
of  the  Devisee  or  Legatee  ivilhiii  a  certain  Time,  or 
ivithout  leaving  Issue  or  other  Objects  who  might  derive 
a  Benefit  through  him. 

Common  I.  »  Where  real  estate  is  devised  to  a  person  235 

cases  where  ^^^^  ijjg  heirs,  or  to  a  person  indefinitely,  and  in 
"  or    is  con-  q^^^q  q[  [jjs  death  nndcr  a  certain  age,  or  withont  issno,  over; 
strued^^ .         the  word  ''or"  is  constrned  "and,"  so  that  the  devise  over 
"  ^"  .'    ^"^    '  may  take  effect  in  case  the  prior  taker  dies  nnder  the  given 
mitations  ol  ^^^  without  issue,  and  not  otherwise.(a) 
ica  cs  a  e.         Everyone  must  have  observed  how  often  the  23fi 

ObseryaUons  jj^jj^^i^ctive  "or"  is  inaccurately  used  for  the  copu- 
on  tins  con-   j^jj^.q  coniunction  "and."     Hence  cases  might  naturally  be 
expected  to  occur,  in  which  the  Courts  might  reasonably  be 
called  upon  to  construe  the  one  for  the  other.     And  as  re- 
gards the  case  above  mentioned,  it  may  be  thought  that  this 
construction  may  have  been  adopted  upon  the  notion  that 
the  limitations  over  on  an  indefinite  failure  of  issue  would 
See  §  706,     be  void  for  remoteness,  so  that  the  words  "or  without  is- 
714.  sue"    would  be  inoperative   unless  "or"    were  construed 

"and."  It  may  be  urged,  however,  that  this  does  not 
prove  that  the  testator  did  not  intend  the  estate  to  go  over 
on  an  indefinite  failure  of  issue,  but  merely,  that  if  such  was 
his  intention,  it  is  contrary  to  law.  And  as  the  limitation 
over  would  be  capable  of  taking  effect  in  the  event  of  the 
death  of  the  devisee  or  legatee  under  the  given  age,  it  would 
not  be  altogether  inoperative  and  void  in  its  original  crea- 
tion, even  if  "or"  were  not  construed  "and." 
See  §  223-  The  principle  of  the  general  rule  enunciated  above,  would 
[  98  ]  appear  to  be  the  true  principle  of  this  construction  ;  namely, 

226.  the  favour  shown  by  the  law  to  the  free  uncontrolled  use 

and  enjoyment  of  property,  and  the  power  of  alienation, 
and  the  general  leaning  in  favour  of  the  primary  objects  of 
the  testator's  bounty.  For,  it  has  been  said  that  it  cannot 
be  supposed  that  a  testator  would  wish  the  estate  to  go  over, 
to  the  exclusion  of  the  issue  of  the  prior  taker,  if  he  should 
die  under  the  given  age,  leaving  issue.  And  though  per- 
See  §  206-  haps  it  may  be  thought  very  questionable,  whether  it  was 
208.  politic  and  expedient  to  adopt  this  construction,  where  the 

(a)  Mr.  Jarman,  in  his  Treatise  on  Wills,  p.  444,  in  addition  to  the  cases 
-staled  below,  refers  to  Soulle  v.  Gerrard,  Cro.  fCl.  525 ;  S.  C.  nom,  Sowell  v. 
Garrett,  Mooro,  422  ;  pi,  590;  Price  v.  Hunt,  Pollc.x,  645;  Barker  v.  Suretces, 
2  Sir.  1175;  Walsh  v.  Peterson,  3  Atk.  193;  Doe  d.  Burnsall  v.  Davy,  6 
Durn.  &  East,  35. 


II.  3.  lii.]      OF  EXECUTORY  INTERESTS.         [§23(J.         [  98  ] 

limitation  over  is  in  case  of  the  death  of  the  prior  taker  un- 
der 21,  or  without  issue,  so  as  to  encourage  early  and  per- 
haps improvident  and  unhappy  marriages;  and  it  may 
therefore  be  doubted  whether  the  testator  really  intended 
to  admit  the  issue  of  the  i)rior  taker,  in  case  of  liis  death, 
under  age,  leaving  issue ;  yet  this  construction  has  been 
adopted  upon  the  notion,  that  it  was  really  advantageous  to 
those  claiming  under  the  prior  limitation,  who  of  course 
were  the  primary  objects  of  the  testator's  bounty.  And 
whatever  doubts  may  be  entertained  of  the  justness  of  this 
notion,  where  the  given  age  is  only  21  ;  where  a  more  ma- 
Hire  age  is  fixed  upon,  as,  for  instance,  where  25  is  the 
specified  age,  such  an  idea  is  of  course  more  likely  to  be 
and  probably  is  correct. 

A  testator  devised  to  his  brother  all  his  real  and  freehold  Fairfield  v. 
estates,  among  which  was  an  estate  held  lor  lives,  which  Morgan,  2 
was  the  estate  in  question  ;  but  in  case  his  brother  should  Bos.  &  Pui. 
die  before  21,  or  without  issue  living  at  his  death,  then  to  N.  R.  38. 
his  mother  for  ever;  the  House  of  Lords,  affirming  the  judg- 
ment of  the  Court  of  Common  Pleas  in  Ireland,  held,  that 
"or"    must   be  read   as   "and";  because,  otherwise,   the 
brother  could  never  have  had  the  absolute  estate,  and  could 
never  have  sold  or  mortgaged  it,  if  his  family  had  been  ever 
so  large ;  and  that  the  idea  of  a  devisor  giving  an  estate  to 
liis  brother,  to  enjoy  it  during  the  life  of  his  mother,  who 
was  likely  to  die  before  her  son;  and  to  make  a  will  which 
would  exclude  the  issue  of  his  brother,  in  case  he  should  die 
a  day  before  he  attained  21,  leaving  issue,  was  so  absurd 
and  improbable,  that  it  was  next  to  impossible  to  impute 
such  an  intention  to  liim. 

Again,  a  testator  devised  a   messuage  to  his  daughter  Eastman  v. 
and   to  her  heirs  for  ever  and  ever;  but  if  his  daughter  [  9^  J 

should  fortune  to  die  and  not  attain  21,  or  having  no  such  Baker,  1 
issue  as  aforesaid,  then  over.  It  was  held,  that  this  was  a  Taunt.  174. 
devise  of  the  fee  to  the  daughter,  Lord  Mansfield,  C.  J.,  ob- 
serving, that  an  estate  tail  had  never  been  given  upon  a 
will  like  the  present,  where  one  of  the  contingencies  was 
the  event  of  the  devisee  dying  under  age ;  for  that  in  such 
cases,  the  dying  without  issue  is  not  considered  as  indefinite 
and  general,  so  as  to  create  an  estate  tail,  but  is  referred  to 
the  concomitant  words  of  dying  under  age.  (1  Taunt.  179.) 
And  it  was  held  that  "or"  must  mean  "and,"  according  to 
Fairfield  v.  Morgan,  2  New  Rep.  38,  and  the  other  cases 
cited ;  because  if  it  did  not,  it  followed,  that,  upon  the  con- 
tingency ot  the  daughter  dying  having  issue,  but  not  having 
attained  21,  the  estate  would  pass  over  from  her  children, 
which  could  never  be  the  testator's  intention.   {lb.  1S2,  1S3.) 

And  where  a  testator  gave  all  the  residue  of  his  estates,  Right  d, 
lands,  &c.,  to  Ins  son.     But  in  case  his  son  should  die  under  Day  v.  Day, 
Vol.  II.— 11 


[  99  J  II.  3.  ill.]  AN  ORIGINAL  VIEW  [§237. 

16  East,  67.  21,  or  should  leave  no  issue  male  or  female,  then  he  gave 
See  also         the  same  to  his  daughter,  she  heing  surviving,  and  her  heirs 
Doe  d.  Her-  male  or  female.     But  in  case  his  son  and  daughter  should 
hert\.Selbi/,  both  die,  leaving  no  issue, then  over  to  the  testator's  cousin. 
2  Bar.  &        Lord  Elleuborough,  C.  J.,  said,  that  a  multitude  of  decisions, 
Cres.  926,      ^^^^^  ^g  Fairfield  v.  Mors^an,  2  New  Rep.  38  ;  Eashnan  v. 
stated §6 S2a.  ^^^/^,^^,^  1   Taunt.   174;  Denn  v.  Kemeys,  9  East,  366,  fol- 
lowing Sowc/lv.  Garretf.  reported  in  Moore,  422;  2  Rol. 
Rep.  2S2,  had  established,  that  the  word  "or,"  in  a  devise 
of  this  kind,  is  to  be  construed  as  "  and,"  to  avoid  the  mis- 
chief, which  would  otherwise  happen,  of  carrying  over  the 
estate,  if  the  first  devisee  died  under  21,  though  he  had  left 
issue.     And  Bayley,  J.,  said,  that  the  estate  was  to  go  over 
to  the  daughter,' if  the  son  died  under  21  and  without  issue, 
and  to  the  cousin,  if  the  daughter  died  without  issue. 
Observations      In  this  case,  the  terms  of  the  devise  over,  as  they  stood, 
on  Right  d.  "or"  being  taken  in  its  natural  disjunctive  sense, constituted 
2>at/ v.i?ar/.  both  a  conditional  limitation,  to  take  effect  in  the  event  of 
See^  148-9  l'^^^  s*^"  dying  under  21,  and  a  remainder,  to  take  effect  on 
159_  '  his  dying  after  21,  without  issue.     But  this  limitation  over 

to  the  cousin  showed  that  this  was  not  the  true  construction, 
[  100  ]        because  that  limitation  was  not  to  take  effect  if  the  son  died 
leaving   any  issue,  whether   he  died  before   21   or   after- 
wards. 
Where  "or"      II.  The  same  construction  is  adopted  where  per-  237 

is  construed   sonal  estate  is  bequeathed  to  a  person  absolutely, 
"and,"  in      or,  which  amounts  to  the  same  thing,  indefinitely, 
limitations  of      Personal  estate,  indeed,  passes  immediately  to  the  execu- 
personal  es-   (or  or  administrator,  and  not  to  the  issue,  and  may  be  ex- 
^^^'  hausted  in  payment  of  his  debts;  but,  generally  speaking,  it 

is  not  exhausted,  and  the  greater  portion  ultimately  goes  to 
the  issue,  so  that  they  may  be  considered  to  be  almost  as 
much  interested  as  if  the  property  were  real  property,  which 
would  pass  to  them  in  the  first  instance. 
Mytton  V.  A  testator  bequeathed  5000/.  to  ..^.,  if  he  attained  21 ;  but 

Boodle,  6       if  he  should  not  attain  that  age,  or  die  without  leaving  issue 
Sim.  457.       male,  then  over.     ./?.  attained  21  ;    and  Sir  L.  Shad  well,  V. 
C,  held,  that  he  was  absolutely  entitled  to  the  money,  the 
clear  intention  of  the  testator  being,  that  Jl.  should  have  it 
if  he  attained  21,  or  if  he  died  under  21,  leaving  issue  male. 
— To  support  this  construction,  it  must  have  been  necessary 
to  read  "  and  should"  for  "  or." 
HawMm  v.       Another  instance  of  a  somewhat  similar  construction  oc- 
Hawkins,  7  curred  where  a  testator  gave  a  sum  of  money  to  trustees,  in 
Sinn.  173.       trust  only,  and  for  the  use  and  benefit  of  his  adopted  daugh- 
ter [who  was  in  fact  his  illegitimate  child];  which  sum  he 
desired  might  be  paid  to  her,  and  to  bo  settled  on  her  during 
her  said  life,  at  the  time  of  her  marriage  ;  or  in  case  she  did 
not  marry,  then,  the  interest  to  be  paid  to  her;  and  in  the 


II.  3.  iii.]  OF  EXECUTORY  INTERESTS.  [§237a,  238.        [   100  ] 

event  of  hor  not  mnrryiiiir,  or  dyin?,  llieii  llie  money  to  go 

to  his  nephews.     The  daughter  married,  and  died  without 

issue.     The  counsel  for  the  husband,  as  her  administrator, 

said,  that,  after  giving  the  money,  for  the  use  and  benefit  of 

his  adopted  daughter,  and  desiring  it  to  be  paid  to  her,  he 

contemplated   her  marrying,  and  directed   how  the   fund 

should  be  settled.     That  he  meant,  however,  not  to  abridge 

hier  interest,  hut  merely  to  protect  her  against  her  liusband. 

That  her  death  was  spoken  of  as  a  contingency,  and  might 

mean  dying  in  the  lifetime  of  the  testator;  or  the  word  '-or" 

might  be  read  as  "and";  in  which  case,  the  gift  over  had 

not  taken  effect.     Sir  L.  Shadwell,  V.  C,  though  he  said 

that  the  latter  words  relating  to  the  settlement,  and  those 

that  preceded,  were  to  be  considered  as  one  sentence;  and        [   101   ] 

that  the  testator  meant  by  them,  that,  on  the  marriage  of  his 

daughter,  a  life  interest  should  at  all  events  be  secured  to 

lier,  yet  held,  according  to  the  construction  put  upon  the 

word  "or"  by  the  learned  counsel,  that  the  testator  meant 

that  his  daugliter's  interest  should  cease  "  in  the  event  of  her 

dying  unmarried." 
237a  III.   In  consistency  with  the  above  construction,  "And"  not 

the  Courts,  of  course,  have  refused  to  construe  the  construed 

copulative  as  a  disjunctive,  where  it  has  been  used  in  such  "  o^'  ^'^, 
,.  '  -.   .•  „„„      ''  such  limita- 

hmitations  over. 

Thus,  where  there  was  a  devise  over  of  a  term,  in  case  ^'<^"s- 
the  prior  taker  should  die  an  infant,  unmarried,  and  with-  -^^^  '^• 
out  issue;  the  Court  refused  to  construe  "and"  as  «  or";  ^^'^J^^"  ^• 
and  held,  that  the  devise  over  depended  on  the  happening  £^^^^269 
of  all  three  events.  ' 

And  where  there  was  a  devise  over  of  real  estate,  if  the  Doe  d. 
prior  taker  should  die  before  21,  and  without  issue;   the  Vsherw.Jes- 
Court  held,  that  the  devise  over  depended  on  the  happen- s^/?,  12  East, 
ing  of  both  events  ;  Lord  Ellenborough,  C.  J.,  and  Le  Blanc,  '--'S^- 
J.,  observing,  that  this  case  was  so  far  distinguishable  from 
Brownsword  v.  Edwards,  that  there  the  word  "  and"  was  See  §  68a. 
construed  "or"  to  prevent  the  working  of  an  injury  to  the 
issue,  namely,  to  a  daughter,  who,  without  such  a  construc- 
tion,  would   liave  been  without   any  provision  :    whereas, 
in    the    principal    case,   the    limitation   over    was   to   other 
relations ;   and  such  a  construction  would  work  that  very 

injury. 
238  IV.  ''This  construction  is  adopted,  where  there  Other  cases 

is  a  devise  to  a  person,  when  he  attains  21, for  life,  where  "or" 

remainder  to  his  children,  in  tail,  with  a  devise  over,  if  he  is  construed 

die  under  21,  or  without  children. (6)  '' ^"^''.'  "^ 

limitations 

over  on  death  under  21  or  without  children. 
(6)  Masker  v.  Sutton^  9  J.  B.  Moore,  2,  as  stated,  1  .farman  on  Wills,  446. 


[  101  ]        II.  3.  iv.]  AN  ORIGINAL  VIEW         [§239—241. 

Other  cases        V.  A  learned  author  observes,  that  it  would  239 

of  the  same    seem  to  be  immaterial  whether  the  dying  is  con- 
construction,  fined  to  minority,  or  is  associated  with   any  other  contin- 
[  102  ]        gency,  as  in  the  case  of  a  gift  to  r^.,and  if  he  die  in  the  life- 
in  limitations  time  of  i?.,  or  without  issue,  then  over;(c)  or  whether  the 
over  on  the  event  is  leaving  issue,  or  leaving  any  other  object  who 

death  within  would  derive  an  interest  or  benefit  through  the  legatee,  if 
some  other     jijg  qj.  j^g^.  interest  was  held  to  be  absolute,  as  a  husband(^) 

tune,orwith-or  wife."(e) 
out  leaving 

some  otlier  object  who  might  derive  a  benefit  through  the  legatee. 

Where  "or"      VI.  But  ^this construction  is  not  adopted  where  240 

is  not  con-     real  estate  is  devised  to  a  person  and  the  heirs  of 
strued  his  body;  and,  in  case  of  his  death  under  a  certain  age,  or 

♦'  and."  without  issue,  then  over  ;(/)  because  it  is  a  general  rule,  that 

See  §  200-95  a  remainder  shall,  if  possible,  be  construed  as  vested,  rather 
187,192-4.  than  contingent;  whereas  the  construing  "or"  as  "and," 
would  be  going  out  of  the  way  to  construe  a  remainder  to 
See  Chap,  be  contingent,  rather  than  vested ;  for  the  devise  over  is 
XXIV.  both  a  remainder  and  a  conditional  limitation. 


SECTION  THE  FOURTH. 

See  &  215-     '^^^^  ^/Application  of  the  Rule  to  Portions  apparently  liable 
222.  to  be  defeuled  by  a  Condition  Subsequent,  in  case  of  the 

Children  to  luhom  they  are  given  not  surviving  their 

Parents. 

Postpone-  I.  Where  portions  are  directed  to  be  paid  on  241 

mentof  pay-  the  attainment  of  a  certain  age,  or  on  marriage,  if 
ment  till  af-    that  event  does  not  happen  in  the  lifetime  of  the  parent;  but 
ter  parent's    not  till  after  the  death  of  the  parents,  if  such  event  does  hap- 
death  is  a      pen  in  his  lifetime  ;  the  Courts  regard  the  attainment  of  the 
postpone-       age  specified,  or  marriage,  as  the  period  when  the  portions 
rnent  of  the    -^re  to  vest  in  interest,  if  not  in  possession  ;  inasmuch  as  the 
actual  pos-     postponement  to  that  period  appears  to  be  on  account  of  the 
session  only,  person  of  the  children :  and  they  regard  the  postponement 
till  the  parent's  death,  or  some  little  time  after,  merely  as  a 
postponement  of  the  actual  possession;  because,  the  post- 
ponement of  the  payment  till  that  period  seems  only  for  the 
[  103  ]        convenience  of  the  estate,  and  the  benefit  of  the  parents  or 
parent  having  a  prior  interest  for  life. 


(c)  Wright  V.  /temp,  3  Durn,  &  East,  70 ;  Denn  v.  Kemeys,  9  East,  366. 

(d)  Weddel  v.  Mundy,  6  Ves.  341. 

(e)  1  Jarman  on  Wills,  466. 

(/)  Woodward  v.  Glasbrook,  2  Vern.  388,  as  stated,  1  Jarman  on  Wills, 
448,  See  also  Lord  llardwicke's  observation  in  Brownsword  v.  Edwards,  2 
Ves.  Sen.  243. 


II.  3.  iv.]      OF  EXECUTORY  INTERESTS.  [§2  12.        [   103  ] 

242  And  -'if  there  is  n  clause  of  survivorship,  provid-  Word  "pay- 

ing for  the  case  of  any  of  the  children   dying,  or  a  able"  in  a 
clause  ofcesser,  or  a  limilalion  over,  in  case  all  of  them  should  clausoofsur- 
die,  before  their  portions  should  become  payable,  the  word  vivorship  or 
"  payable"  is  referred  exclusively  to  the  period  of  attaining  cesser  or  a 
the  age  specified  or  marriage,  whenever  it  may  happen,{«)  l'mita|ion 
unless  the  same  word  is  used  in  another  passage  in  such  a  over,  is  re- 
way  as  clearly  to  refer  to  the  death  of  the  parents.  ^^'™  ^^^^^'^^ 

age  specified  or  marriage. 

A  testator  gave  property,  in  trust  to  pay  the  interest  to  IlalUfax  v. 
li.  IL,  for  life,  and,  after  her  decease,  to  pay  the  principal  to  ^yihon,  16 
his  nephews  and  nieces  ;  the  shares  to  be  paid  at  21,  with  Ves.  168. 
survivorship,  in  case  any  of  them  should  die  before  his  or 
their  share  or  shares  should  become  payable.     Sir  W.  Grant, 
]\I.  R.,  held,  that  the  word  payable  referred  most  naturally  to 
the  period  of  21  alone.     And  this  decision  was  affirmed  by 
the  Lord  Chancellor. 

And  so  where  by  a  marriage  settlement,  a  term  was  p^y  y.  Lord 
created,  and  limited  to  trustees,  upon  trust  (in  case  there  Sherbourjie, 
should  be  no  issue  male  of  the  marriage,  and  there  should  3  Sim.  243. 
be  a  daughter  or  daughters  at  the  time  of  the  failure  of  issue 
male,  or  afterwards)  by  sale,  or  mortgage,  or  out  of  the  rents 
and  profits,  to  raise  portions  for  such  daughter  and  daugh- 
ters, to  be  applied  as  thereinafter  mentioned  ;  (that  is  to  say) 
if  there  should  be  any  such  daughter  or  daughters,  then,  the 
sum  of  20,000/.  should  be  raised  and  paid  as  and  for  the  por- 
tion or  portions  of  such  daughter  or  daughters  ;  the  same  to 
be  paid  at  21,  or  day  of  marriage,  which  should  first  happen 
after  the  decease  of  E.  C.  (the  father)  and  failure  of  issue 
male  ;  and  if  any  of  the  said  daughters  should  attain  21,  or 
be  married,  in  the  lifetime  of  E.  C,  then,  such  portion  or 
portions  should  be  paid  to  such  daughter  or  daughters,  with- 
in six  months  after  his  decease.  There  followed  a  proviso, 
that  in  case  all  the  daughters  should  die  before  any  of  their 
portions  should  become  payable,  then,  the  money,  or  so  much 
thereof  as  should  not  then  be  raised,  should  not  be  raised, 
and  then  also  such  sum  as  should  be  then  raised  for  or  to-  [  104  ] 
wards  such  portion  or  portions,  should  be  paid  unto  the  per- 
son next  in  reversion  or  remainder;  and  that  no  such  sale  or 
mortgage  as  aforesaid  should  be  made  until  some  or  one  of 
the  portions  should  become  payable.  And  it  was  provided, 
that  in  case  there  should  be  no  such  daughter  or  daughters, 
or,  being  such,  all  of  them  should  die  before  any  should  be 
entitled  to  her  or  their  portion  or  portions  ;  then,  the  term 
should  cease.     The  only  issue  of  the  marriage  was  a  daugh- 

(a)  Jcferirs  v.  Keynoiis,  0  Bro,  l^arl.  Ca.  398,  8vo.  ed.,  as  staled,  1  Rop. 
Le^.  536". 


[   101   ]         IT.  3.  iv.] 


AN  ORIGINAL  VIEW 


[§242. 


ler,  who  attained  21,  and  married,  but  died  in  her  father's 
lifetime.  Sir  L.  Shad  well,  V.  C,  after  remarlcing,  that  the 
event  took  place  in  which  the  sum  for  a  portion  was  to  be 
raised,  namelv.  the  faihire  of  issue  male,  and  after  review- 
ing the  cases,  said,  that  he  was  compelled  to  hold,  that  where 
a  portion  is  provided  for  a  son  on  attaining  21,  or  for  a 
daughter  on  attaining  that  age,  or  being  married,  and  those 
events  happen  in  the  lifetime  of  the  parent,  the  child,  though 
it  dies  in  the  lifetime  of  the  parent,  has  acquired  an  absolute 
vested  interest  in  the  portion ;  or,  in  other  words,tliat  the  word 
"payable"  means  "vested."  His  Honour  then  observed, 
that  one  of  the  above  clauses  assumed,  that  though  the 
daughters  might  not  have  arrived  at  the  time  when  their 
portions  would  be  payable,  yet  part  of  the  portions  might 
have  been  raised  ;  and  that  it  was  quite  clear  that  the  par- 
ties did  suppose  that  there  was  something  in  the  antecedent 
part  of  the  declaration  of  trust,  which  might  make  the  por- 
tions payable  in  the  lifetime  of  the  father;  and,  accordingly, 
there  was  an  express  proviso,  that  no  sale  or  mortgage 
should  be  made  until  some  or  one  of  the  portions  should  be- 
come payable.  If,  however,  the  proviso  for  the  cesser  of  the 
term  had  been  couched  in  such  language,  as  that,  notwith- 
standing the  expression  to  which  he  had  before  alluded,  the 
term  had  ceased.  His  Honour  observed,  that,  in  that  case, 
Mocatto  V.  there  would  have  been  an  end  of  the  question. — In  a  similar 
Lindo,  9  case  His  Honour  construed  the  word  "  payable  "  in  the  same 
Sim.  56.        manner. 

Brisht  V.  ^^^^  where  a  married  woman,  by  a  testamentary  instru- 

Rowe,  3  M.  ment  made  in  execution  of  a  power  contained  in  her  mar- 
&  K.  316.  riage  settlement,  gave  2000/.,  subject  to  the  life  interest  of 
her  husband,  to  trustees,  upon  trust  for  the  benefit  of  her 
[  105  ]  children,  to  be  equally  divided  between  them:  but  in  case 
the  2000/.  should  become  payable  before  her  children,  bemg 
sons,  should  have  attained  21,  or,  being  daughters,  should 
have  attained  that  age, or  day  of  marriage;  then,  in  trust  to 
invest  and  apply  the  interest  for  their  maintenance  and  edu- 
cation ;  and  when  they  should  attain  21,  or  day  of  marriage, 
to  pay  to  them  their  respective  shares  of  the  principal  and 
unapplied  interest ;  and  in  case  any  of  the  children  should 
die  before  her,  his,  or  their  portion  or  portions  of  the  2000/. 
should  become  payable  ;  then,  the  same  should  respectively 
go  to  the  survivors  or  survivor.  The  testatrix  left  a  son  and 
two  daughters,  all  of  whom  had  attained  21  at  her  decease. 
The  son,  and  afterwards  a  daughter,  died  in  the  lifetime  of 
their  father.  The  question  was,  whether  the  personal  re- 
presentative of  the  deceased  daughter  who  survived  the  son, 
but  died  in  the  father's  lifetime,  was  entitled  to  any  and 
what  part  of  the  2000/.;  or,  whether  the  whole  vested  in 
the  other  daughter  who  survived  the  father.     On  the  one 


11.  3.  iv.J     OF  EXECUTORY  INTERESTS.  [§2 12.        [   105  ] 

hand,  it  was  argued  that  the  word  "payable"  was  used  iu 
a  sense  equivalent  to  "vested";  and  that,  to  say  the  least, 
there  was  not  a  clear  unambiguous  intention  to  make  the 
right  of  the  children  to  their  portioiis  depend  upon  their 
surviving  both  parents.  On  the  other  hand,  it  was  contend- 
ed that  the  word  "payable"  clearly  referred  to  the  period  at 
which  both  parents  should  have  died,  and  was  expressly 
distinguished  fri^i  the  provision  for  payment  at  21  or  mar- 
riage, which  was  only  to  take  place  [and  which,  in  fact, 
could  only  take  i)lace]  in  case  of  the  death  of  the  parents 
before  their  children  should  have  attained  21  or  liave  been 
married.  Sir  John  Leach,  M.  R.,  held,  tliat  the  shares  of 
the  children  vested  at  majority  or  day  of  marriage;  and 
that  the  daughter,  who  survived  the  father,  was  entitled  to 
the  whole  of  the  2000/.  by  survivorship,  except  the  moiety 
of  the  one  third  part  or  share  of  the  deceased  son  which  ac- 
crued to  the  deceased  daughter  who  survived  him  but  died 
in  the  father's  lifetime.  His  Honour  observed,  that  when  a 
testator  has  unequivocally  expressed  an  intention  that  a  pro- 
vision to  be  made  for  his  children  should  depend  upon  their 
surviving  both  their  parents,  the  Court  nuist  give  effect  to 
that  intention,  and  could  only  lean  to  the  presumption  in 
favour  of  children,  where  the  intention  of  the  testator  was 
ambiguously  expressed;  and  that  he  could  see  no  ambigui-  [  106  ] 
ty  in  the  principal  case,  but  was  clearly  of  opinion,  that,  by 
dying  before  tlieir  portions  became  payable,  the  testatrix 
meant  dying  in  the  lifetime  of  the  husband  ;  and  that  the 
shares  of  the  children  so  dying  were  given  to  the  survivors 
or  survivor  of  them. 

It  may  be  observed  that  the  personal  representative  of  Observations 
the  deceased  daughter,  in  contending  that  the  word  ''pay-  on  Bright  \. 
able  "  was  synonymous  with  "  vested,"  and  referred  to  the  Rowe. 
period  of  the  children's  majority  or  marriage,  construed  the 
word  by  the  next  antecedent  contained  in  the  next  preced- 
ing sentence,  which  directed  the  trustees  "to  pay"  the  shares 
at  majority  or  on  tiie  day  of  marriage.  The  daughter  who 
survived  the  father  construed  it  by  referring  to  the  first  part 
of  the  will,  where  the  very  same  word  "payable"  was 
used,  and  where  it  clearly  did  not  refer  to  the  period  of  the 
children's  majority  or  marriage,  but  to  an  event  antecedent 
to  that  period;  the  words  being  "in  case  the  said  sum  of 
2000/.  should  become  payable  before  [the  children]  should 
have  attained  the  age  of  21  years  or  day  of  marriage." 
And  as  the  word  payable,  in  the  first  part  of  the  will,  clear- 
ly did  not  refer  to  the  period  of  the  children's  majority  or 
marriage,  and  could  only  refer  to  the  death  of  the  father; 
so,  when  the  same  word  was  used  in  the  latter  part  of  the 
will,  it  was  to  be  understood  in  the  same  sense. 


[   106  ]        II.  3.  IV.]  AN    ORIGINAL   VIEW  [§212,  243. 

Torres  v.  In  a  previous  case,  by  articles  of  agreement  made  before 

Franco,  1  marriage,  stock  was  vested  in  trustees,  upon  trust  to  pay  the 
Russ.  vSkT  M.  dividends  to  the  husband,  for  the  joint  Uves  of  husband  and 
649.  wife;  remainder  to  the   wife,  for  life  ;  and   from  and  after 

her  death,  in  case  there  should  be  any  child  or  children  of 
the  marriage  living  at  the  time  of  her  decease,  then,  upon 
trust  for  such  of  the  said  children  as  should  attain  the  age  of 
21  years  or  be  married  ;  with  a  direction  for  maintenance  ; 
and  in  case  the  wife  should  die  without  leaving  any  child  or 
children  at  the  time  of  her  decease,  or  in  case  there  should 
be  one  or  more  such  children  or  child  then  hving,  yet  all  of 
them  should  die  under  the  age  of  21  years,  and  unmarried; 
then,  in  trust  for  certain  other  persons.  The  wife  survived 
lier  husband;  and,  at  her  death,  no  child  of  the  marriage 
was  living,  but  she  had  had  a  son,  who  after  having  attained 
[  107  J  21  and  married,  died  in  her  lifetime  leaving  issue.  Sir  John 
Leach,  M.  R.,  is  reported  to  have  said  :  "  This  case  is  to  be 
decided  upon  the  principle  established  in  Howgrave  v.  Car- 
tier,  3  Ves.  &  B.  79.  The  gift  over  is  not  to  take  effect  unless 
all  the  children  die  under  age  and  unmarried.  This  is  incon- 
sistent with  the  clause  which  imports  that  a  child  to  take 
must  survive  the  mother :  and  where  clauses  are  conflicting, 
the  rational  presumption  is,  that  a  child  attaining  21  takes 
Observations  a  vested  interest."  This  decision,  however,  would  seem 
on  Torres  v.  questionable;  for,  the  learned  Judge  appears  to  have  been  mis- 
Franco.  taken  in  stating  that  the  gift  over  was  not  to  take  effect  un- 
less all  the  children  died  under  age  and  unmarried.  The 
limitation  over  was  to  take  effect  in  either  of  two  events; 
namely,  in  case  the  wife  should  die  without  leaving  any 
child  or  children  at  the  time  of  her  decease;  or,  in  case  there 
should  be  one  or  more  children  or  cliild  then  living,  yet  all 
of  them  {i.  e.  such  surviving  children)  should  die  under  age 
and  unmarried. 
Words  sup-        II.  Where  there  is,  in  terms  or  in  eff'ect,  a  limita-  243 

plied,  or  the  tion  over,  in  case  of  the  death  of  any  of  the  chil- 
word  "or"     dren  before  their  parents,  or  one  of  them,  as  the  case  may 
changed  into  be;  some  words  have  sometimes  been  supplied,  or  the  dis- 
"and."  junctive  "or"  has  been  changed  into  the  copulative  con- 

junction "and,"  so  as  to  confine  the  event  of  death  to  a  dy- 
ing under  a  certain  age  which  is  mentioned  in  another  pas- 
sage of  the  will,  and  at  which  the  testator  appears  to  have 
intended  the  children  to  take  vested  interests. 
Clulferbuck        A  testator  appointed  a  fund,  after  the  decease  of  his  wife, 
V.  Edivards,  to  his  son,  to  be  paid  to  him  at  her  decease,  if  he  shall  then 
2Uuss.  &M.  have  attained  21;  and  in  case  his  son  should  die  before  21, 
577.  and  after  the  wife,  he  gave  the  fund  to  his,  the  testator's, 

brother;  and  in  case  the  wife  should  outlive  both  the  son 
and  the  brother,  lie  gave  it,  after  the  wife's  decease,  to  such 
of  his  brother's  daughters  as  should  then  be  living.     The 


II.  3.  iv.J     OF  EXECUTORY  INTERESTS.  [§243.        [   107  J 

son  attained  21  ;  but  the  wife  survived  botli  the  son  and  the 
brother,  who  had  daughters  hving  at  the  wife's  decease. 
Sir  John  Leach,  M.  R.,  and  afterwards  Lord  Brougham,  C, 
on  appeal,  held,  that  the  representatives  of  the  son,  and  not 
the  daughters  of  the  brollier,  were  entitled  to  the  fund.  The 
Lord  Cliancellor  said,  "  Tlie  question  being  with  reference 
to  the  third  clause,  whether  it  shall  be  read  in  one  or  other  [  108  ] 
of  two  ways,  that  is,  as  providing  for  the  son's  pre-decease, 
whether  under  or  above  21,  or  as  providing  only  for  his  pre- 
decease imder  21  ;  I  read  it,  according  to  the  general  inten- 
tion, in  the  latter  way,  thus:  in  case  my  wife  survives  my 
son  under  21,  and  also  my  brother,  then  to  my  nieces." 
(2  Russ.  &  M.  587.)  "The  violence  would  certainly  be 
great,  of  the  other  construction,  cutting  out  the  grandchildren 
of  the  testator  in  favour  of  his  nieces,  and  making  the 
interest  which  the  son  took  depend  upon  a  contingency 
wholly  immaterial,  namely,  his  surviving  his  mother — ma- 
terial, indeed,  as  to  the  term  of  payment,  but  immaterial  as 
to  the  vesting  of  the  estate — and  to  make  the  nieces  take  an 
interest  merely  because  their  uncle's  wife  had  survived  her 
son,  though  their  father,  tlie  testator's  brother,  was  only  to 
take  any  interest  in  case  the  son  died  under  21."    {lb.  586.) 

In  another  case,  a  testator  bequeathed  his  real  and  per-  MUcs  v. 
sonal  estate  to  trustees,  in  trust  to  pay  an  annuity  to  his  A/er,  5Sini. 
wife,  for  lier  life;  and  to  raise  and  pay  to  each  of  his  sons,  435. 
2000/.,  on  their  attaining  21 ;  and  to  stand  possessed  of  a 
like  sum  in  trust  for  each  of  his  daughters  attaining  that 
age;  and  to  accumulate  the  surplus  income  during  the  life 
of  his  wife ;  and,  after  her  death,  to  sell  the  property  and 
divide  the  proceeds  amongst  his  children  on  their  attaining 
21  ;  and  in  case  all  the  said  children  should  die  in  the  life- 
time of  his  wife,  or  under  21,  and  without  leaving  issue, 
(hen,  after  his  wife's  death,  to  sell  the  property  and  divide 
the  proceeds  among  certain  other  persons.     It  was  argued, 
that  none  of  the  children  were  to  take  if  they  died  without 
issue  before  the  period  of  enjoyment;  and  that  the  words 
"  and  without  leaving  lawful  issue"  were  to  be  applied  to 
both  members  of  the  sentence.     But  Sir  L.  Shadwell,  V". 
C,  on  the  hearing  of  a  demurrer,  said,  that  it  was  clear  that 
the  testator  did  not  mean  the  property  to  go  over  if  his 
cliildren  attained  21,  or  if  they  died  under  21  leaving  issue; 
and  that  "or"  ought  to  be  read  "and".    And  His  Honour,  8  Sim.  330. 
on  the  hearing  of  the  cause,  was  of  the  same  opinion  ;  and 
observed,  that,  by  the  first  words,  the  gift  to  the  children 
was  made  to  depend  on  their  attaining  21,  whether  they  observations 
died  in  the  lifetime  of  the  wife  or  not.     Without  doubling  on  Miles  v. 
the  soundness  of  the  decision,  that  the  properly  was  not  to  Jjuer. 
go  over  if  the  cliildren  attained  21,  though  they  might  after-        [   109  ] 
wards  die  in  the  wife's  lifeiinie,  it  may  appear  questionable 
Vol.  II.— 12 


[109]        II.  3.  iv.]  AN  ORIGINAL  VIEW  [§243a,  244. 

whether  "or"  ought  to  be  construed  "and"  to  support  that 
construction.  If  the  children  should  die  without  issue  under 
21,  after  the  wife's  decease,  it  was  clear!}'-  the  testator's  in- 
tention, that  the  property  should  go  over;  yet,  according  to 
that  construction,  it  could  only  go  over  if  they  sliould  die  in 
the  wife's  lifetime,  under  21.  Not  that  the  construction 
was  open  to  such  an  ol)jcction,  so  far  as  the  case  above 
mentioned  was  concerned  ;  for  the  children  had  already  at- 
tained 21.  But  the  question  may  arise,  on  similar  language 
in  another  case,  where  the  children  have  not  attained  tfie 
age  specified,  and,  in  such  case,  it  is  humbly  suggested,  that 
instead  of  construing  "or"  as  "  and,"  the  desired  object  may 
be  gained  by  construing  the  words  thus :  and  in  case  the 
said  &c.  shall  die  in  the  lifetime  of,/?.,  or  [at  any  other  time] 
imder  the  age  of  21  years,  and  without  leaving  lawful  issue. 
By  connecting  the  words  "and  without  leaving  lawful  issue" 
with  both  members  of  the  sentence,  these  words  "  at  any 
other  time"  may  be  fairly  understood ;  and,  in  this  way, 
the  dying  in  the  lifetime  of  .^.  might  be  confined  to  a  dying 
imdcr  the  age  specified,  and  yet  at  the  same  time,  the  estate 
would  be  limited  over  in  the  event  of  death  under  that  age, 
after  ^.'s  decease. 
Leavingcon-  HI-  And  where  vested  interests  in  a  fund  are  243a 
striied  into  given  to  children  at  a  certain  age  ;  but  there  is  a 
"having  limitation  over  in  the  event  of  their  parent  dying  witiiout 
had"  or  leaving  any  child  or  children  ;  the  word  "  leaving"  is  con- 

"  having."      striied  as  "  having  had,"  or  "  having." 

Marshall  v.        A  testator  devised  to  J.  M.  and  his  son  or  sons,  limited 
Hiil,  2  Mau.  as  aforesaid  [i.  e.  to  J.  71/.,  for  life  ;  remainder  to  his  first  and 
&  Sel.  608,  other  sons]:  and,  if  J.  M.  should  die  leaving  no  son  or  sons, 
as  aforesaid,  then  over.     It  was  held,  that  J,  M.  took  an 
estate  for  life,  and  W.  C.  M.,  his  eldest  son,  a  vested  inde- 
feasible remainder;   I^ord  Ellenborough,  C.  J.,  observing, 
that  "  leaving"  meant  "  having  had." 
MailJand  v.       And  where  a  testator,  after  giving  vested  interests  in  stock 
Chalie,  6       to  his  daughter's  children  at  21,  directed,  that,  in  case  his 
Mad.  243.      said  daughter  should  die  without  leaving  any  child  or  chil- 
dren of  her  body  lawfully  begotten,  or,  leaving  any  such 
[   110  ]        child  or  children,  and  such  only  child  or  all  such  children 
should  die  before  21,  then,  that  the  stock  should  be  trans- 
ferred to  the  testator's  next  of  kin  who  should  be  living  at 
the  death  of  the  longer  liver  of  them  his  said  daughter  and 
her  said  children  so  dying  before  21.     The  daughter  had 
two  children,  who  attained  21,  and  died  in  her  lifetime.    Sir 
John  Leach,  V.  C,  held,  that  the  word  "  leaving"  was  to  be 
construed  as  "  having." 
Where  the         IV,  But  where  the  gift  or  payment  is  postponed  244 

children  who  till  a  certain  period,  and  there  is  a  limitation  over 
do  not  sur-     in  case  there  should  be  no  child  living  at  the  death  of  the 


11.4]        OF  EXECUTORY  INTERESTS.    [§215,240.        [HO] 

parent;  tlicre,  it  would  seom  tlint  the  portions  eilhcr  do  not  vive  take 
vest  at  that  period,  in  the  parent's  Hfetiuie,  or  they  vest  de-  nothing, 
feasihly,  Uahle  to  be  devested,  so  that  tlie  representatives  of 
a  child  who  dies  after  such  period,  but  in  the  lifetime  of  the 
parent,  will  take  nothing:,  unless  this  construction  can  be 
avoided  simply  by  supplying  the  word  "such." 

A  limitation  over  of  this  kind  occurred  in  the  case  of 
Schencic  v.  Lei^h,  9  Ves.  300.  And  Sir  W.  Grant,  M.  R., 
said,  that  if  there  was  any  thing  ecpiivocal ;  if  the  event  was 
the  death  of  all  the  children  before  the  portions  were  pay- 
able, he  could  so  construe  that  by  reference  to  the  two  pe- 
riods as  to  make  it  consistent  with  vesting  at  21  or  marriage. 
But  there  the  contingency  was  so  plain,  that  notwithstand- 
ing the  authority  of  fVoodcock  v.  The  Duke  of  Dorset,  he 
doubted  whether  he  should  be  justified  in  new-moulding 
that  proviso  so  as  to  qualify  it  in  that  manner.  (9  Ves.  312.) 
But  it  was  unnecessary  for  the  Court  to  decide  the  point. 
{lb.  313.) 


CHAPTER  THE  FOURTH.  [  m  j 

PRESENT  VESTED  INTERESTS,  SUBJECT  TO  A  TERM  FOR  YEARS, 
DISTINGUISHED  FROM  VESTED  AND  CONTINGENT  REMAIN- 
DERS, AND  FROM  SPRINGING  INTERESTS. 

245  An  interest  of  freehold  duration,  which  is  limited  A  freehold 
after,  and  only  preceded  by,  a  term  for  years,  may  alter  a  term 

be  designated  a  remainder  in  relation  to  the  prior  term  for  maybe 

years,  so  far  as  regards  the  possession  or  beneficial  interest,  called  a  re- 

For,  as  the  termor  has  the  possession,  with  or  without  the  mainder,  so 

exclusive  beneficial  interest,  for  the  period  of  his  term,  the  ftiras regards 

person  to  whom  the  freehold  is  limited,  may  truly  be  said  ^"^  posses- 

to  have  the  remainder  or  remaining  part  of  that  possession  ^'?"'  ^"'|^o'^ 

or  beneficial  interest  which  was  parted  with  or  devised  by  ^^'  ^'^^ .  .  ^ 

the  person  who  srantcd  or  devised  the  term  and  freehold,  .  , 

1     ,•      I  ■   1     1  I         1      i2     .         .        1  I  I  interest, 

and  ot  winch  the  termor  has  the  first  part  under  such  grant 

or  devise. 

246  But,  an  interest  of  the  measure  of  freehold,  lim-  But  it  is  not 
ited  at'ter,  and  only  preceded  by,  a  term  for  years,  ^  remainder, 

is  not  a  remainder  at  all  in  the  ordinary  sense  of  the  word  properly  so 
remainder,  when  used  with  reference  to  a  freehold  interest,  called; 
For,  it  is  not  a  remainder  as  regards  the  seisin,  property,  or  See  §  159, 
ownership.     As,  iu  the  case  supposed,  there  is  no  other  pre-  46-7,50,52, 
ceding  interest  tiian  a  term  for  years;  and,  as  a  term  for  58,  66. 
years  is  a  mere  right  extending  to  the  possession,  with  or 


[  111   ]       II.  4.]  AN  ORIGINAL  VIEW  [§247—252. 

without  the  exclusive  beneficial  interest,  and  not  a  portion 
of  the  seisin,  property,  or  ownership ;  it  follows  that  the 
freehold  interest  cannot  be  said  to  be  a  remainder,  remnant, 
residue,  or  remaining  portion  of  the  seisin,  property,  or 
ownership. 
but  is  either        The  truth  is,  that  (setting  aside  cases  of  aug-  247 

a  present  mentativc  limitations)  an  interest  of  the  measure 
vested  inter-  of  freehold,  limited  after,  and  only  preceded  by,  a  term  for 
est,  subject  years,  is,  in  regard  to  the  seisin,  property,  or  ownership, 
to  a  term;  or  either  a  present  vested  interest,  subject  to  a  chattel  interest, 
else  a  spring-  operating  by  way  of  exception  out  of  the  freehold,  or  seisin, 
[  112  ]  property,  or  ownership,  and  by  way  of  suspension  of  one  or 
ing  interest,  ^lore  of  its  ordinary  concomhants  or  incidents,  namely,  the 
See  §  llle.  possession,  with  or  without  the  exclusive  beneficial  interest. 
See  §  45-48,  ^■^^.  ^^^e  period  of  the  term  •,.  or  else  it  is  a  springing  interest, 
5^-  which  is  good,  if  limited  by  way  of  use  or  devise,  though 

1 9j     W-'     '^'°^^'  ^^  li^ii^ed  by  deed  at  common  law.     And, 
124a,  i:./a.       ^    j^  ^  freehold  interest  is  limited  to  a  person  in  248 

Whereafree-  i,Q[^^g  ^j^j  ascertained,  to  take  elTect  on  the  certain 
hold  after  a  J.eg^lal.  expiration  of  a  term  for  years,  in  possession,  with- 
term  is  a  pre-  ^^^  being  preceded  by  any  other  freehold  interest,  such  free- 
sent  vested  j^^j^  interest  is  a  present  vested  interest,  subject  to  the  term, 
'ecttoaterav  ^^  regards  the  possession,  with  or  without  the  exclusive 
See  ^Ule  '  beneficial  interest. 

'        For,  in  such  case,  the  freehold  interest  is  only  249 

postponed  until  the  expiration,  and  for  the  sake  of, 
a  prior  chattel  interest :  and  as  such  prior  interest  does  not 
extend  to  the  seisin,  property,  or  ownership,  but  only  to  the 
possession,  with  or  without  the  beneficial  interest ;  there  is 
no  reason  to  suppose  that  any  thing  but  the  possession,  with 
or  without  the  beneficial  interest,  was  intended  to  be  post- 
poned. 
See§  75a,         Tliat  such  a  freehold  is  a  vested  interest,  either  250 

77-78a,  88,    present  or  future,  no  one  will  dispute.     If  it  is  a 
89.  future  vested  interest,  it  must  be  cither  a  remainder  or  a  re- 

See  §  75.  version.  But  we  have  seen  that  it  is  not  a  remainder,  as 
See  §  245-6.  regards  the  seisin,  property,  or  ownership  ;  and  it  is  obvious 
See  §  169.  that  it  is  not  a  reversion.  And,  therefore,  it  must  be  a 
See  §  75-77,  Present  vested  interest,  though  subject  to  the  preceding 
87-8.  '  term. 

—  where  it  is  '^^e  most  simple  illustration  of  this  occurs  in  251 
limited  on      cases  where  the  freehold  interest  is  limited  to  take 

the  effluxion  effect  on  the  effluxion  of  the  given  number  of  years  of  which 
of  years;        the  term  consists:  as,  where  land  is  limited  to  ./?.  for  21 
years,  and  then  to  B.  for  life. 

—  where  it  is      ^^ut,  the  same  rule  applies,  where  the  term  is  252 
limited  on  the  rendered  determinable  by  means  of  a  special  or 
droppingofa  collateral  limitation,  on  the  dropping  of  a  life  or  lives;  and 
life  or  lu'es.   it  is  for  so  great  a  number  of  years  that  there  is  not  a  com- 


II.  4.]  OF  EXECUTORY  INTERESTS.  [§253.        [  112  ] 

mon  possibility  of  llic  life  or  lives  enduring  beyond  it;  and  See  ^  .'}4-42. 
the  freehold  interest  is  limited  to  take  cflect  on  the  dropping 
of  the  life  or  lives;  as,  where  land  is  limited  to  ^^1.  for  99 
years,  if  B.  so  long  live  ;  and,  on  the  death  of  B.,  to  C.  for 
life.  For,  in  such  case,  the  freehold  interest  is  as  much 
limited  to  take  efTect  on  the  certain  expiration  of  the  term, 
as  if  it  had  been  limited  to  take  effect  on  the  eflUixion  of  the  [  lis  ] 
given  number  of  years;  because,  the  dropping  of  the  life  or 
lives  is  an  event  which  must  happen  within  the  given  num- 
ber of  years  constituting  the  term,  and  is  an  event  on  which 

the  term  must  cease. 
253  "  It    must    be   admitted    that    freehold    interests  Freeholds 

limited  after, and  only  preceded  by,  terms  for  years,  after  a  term 

subject  to  a  special  or  collateral  limitation,  are  called  re-  are  called 

mainders  by  the  great  authority  upon  the  learning  of  con-  remainders 

lingencies  ;  and  that  there  are  decisions  stated  by  him,(«)  in  ^y  I* came  in 

which  freehold  interests  so  limited  were   regarded  as  ^e- ^'^"^^  ^^"^^ ', 

mainders.  ^"j^  assumed 

Hut,  the  real  question,  in  each  of  these  cases,  was,  whether  ^?^  ^  '" 

.1      •    .         .         ^  *   J  ■    »         ^         1        ..      I,   .1        •.  several  cases, 

the  mterest  was  a  vested  mterest,  and  not  whether  it  was  a  • 

.1  1  1    .1        r        .u        I    •.  1  •     insomesense 

vested  remamder  ;  and,  therefore,  though  it  was  assumed  in  ^^  j^^^gj 

these  cases,  as  it  is  assumed  by  Fearne,  that  the  interest  was  U  . . ,  • 
a  remainder,  in  some  sense ;  yet,  all  that  these  cases  can        nt'  n    " 
fairly  be  regarded  as  establishing,  is,  that  the  freehold  in-  ^vas  (-xtra- 
tcrest  in  question  is  a  vested  interest,  and  not  that  it  is  a  judicial 
vested  remainder,  in  regard  to  the  seisin,  pro])erty,  or  owner- 
ship.    Even  admitting  it  to  be  the  fact,  which,  however, 
does  not  appear  in  the  reports,  that  the  Court  itself  regarded 
the  freehold  interest  as  a  remainder,  in  regard  to  the  seisin  ; 
still,  that  construction  was  extra-judicial,  and  one  into  which, 
as  such,  the  Court  might  easily  have  fallen,  from  not  per- 
ceiving, or  from  forgetting  for  the  moment  at  least,  the  dis-  See  §  245-6. 
tinction  above  stated  between  a  remainder  in  relation  to  the 
possession,  with  or  without  the  exclusive  beneficial  interest, 
and  a  remainder  in  regard  to  the  seisin,  property,  or  owner- 

^^^^P-  '  Air 

And  admitting  that  the  illustrious  author  by  whom  these  L 

cases  are  referred  to,  assumes  that  a  freehold  limited  after,  ». 

11  111.  r  ■  •     1         •     sumes  them 

and  only  preceded  by,  a  term  for  years,  is  a  remainder,  in  ^^  ^^  ^.^^ 

the  ordinary  sense  in  which  the  word  is  used  with  reference  nialnders 

to  freehold  interests;  such  an  assumption  would  only  pre- propcrlv  so 

sent  us  with  an  instance  of  a  similar  oversight  to  that  pointed  called  this 

out  by  the  eminent  editor  of  the  former  editions,  in  the  intro-  wouldappear 

duction  to   the   work,  and   an   additional,  and  a  painful,        [  114  ] 

though  perhaps  a  salutary  proof,  of  the  fallability  even  of  an  oversi<dit. 


(«)    See  Fcarnc,  20 — 27,  and  Nappcr  v.   Sanders,  Hiift.  US;  Beverley,  \. 
Beverley,  2  Verti.  131  ;  and  Ptnhuy  v.  IhirreU,  2  \'crn.  370  ;  as  there  stated. 


[  114  ]        TI.  1.]  AN  ORIGINAL  VIEW  [§254—257. 

A  similar  re- the  most  learned,  accurate,  and  profonnd.     And 

mark  applies  a  similar  remark  applies  to  a  passage  in    one  of  254 

to  Butler.       the   notes  of  that  eminent  editor  himself,   ^  who 

mentions,  as  an  example  of  the  first  kind  of  contingent 
remainder,  the  case  of  land  "given  to  ^'2.  for  21  years,  i[ B. 
shall  so  longcontinne  at  Rome,  and  if  he  quit  Rome  during 
the  term,  to  C.  in  fee  :"{b)  though,  independently  of  the 
reasoning  at  the  commencement  of  this  chapter,  that  learned 
individual  might  have  known,  that,  according  to  the  pro- 
positions advanced  by  Fearne  and  assented  to  by  him- 
self, the  freehold  interest  so  limited,  was  not  a  contingent 
remainder,  seeing  that,  according  to  those  propositions, 
'=''  wherever  an  estate  in  contingent  remainder,  amounts 
to  a  freehold,  some  vested  estate  of  freehold  must  precede 
it."(c) 
Whereafree-      II.  But,   where   a  freehold  interest   is   limited  255 

hold  after  a    after,  and  is  only  preceded  by,  a  term  for  years; 
term  is  a        and  it  is  contingent  on  accotmt  of  the  person  ;  or  it  is  limited 
sprmgmg  in-  to  take  effect  only  on  a  contingent  determination  of  the  term, 
lerest;  by  means  of  a  special  or  collateral  limitation,  or  on  some 

See  §  34-42.  event   unconnected  with   the   original   measure,   and    the 
regular  expiration  thereof;  in  such  cases,  the  freeiiold  in- 
See  §  117-     terest  is  a  springing  interest  of  the  second,  third, 
127a.  fourth,  or  fifth  kind,  in  regard  to  the  seisin,  proper-  256 

ty,  or  ownership,  and  is  good,  if  limited  by  way  of 
use  or  devise,  though  void  if  limited  by  deed  at  common 
—  where  it  is  law.  As,  if  land  is  devised  to  ^.  for  21  years,  and  then  to 
h'mitedonthe  an  unborn  son  of  B.,  in  fee ;  or  to  A.  for  99  years,  if  C.  shall 
effluxion  of  ^o  long  continue  at  Rome ;  and,  on  the  return  of  C.  from 
years,  and  in  Rome,  then  to  B.,  in  fee ;  or  to  ^.  for  99  years ;  and,  on  the 
other  cases,    ^jg^th  of  .^.,  then  to  B.,  in  fee. 

'^And   so,   where  the   term  is   rendered  deter-  257 

minable,  by  means  of  a  special  or  collateral  hmita- 
tion,  on  the  dropping  of  a  life  or  lives,  and  it  is  for  so  few 
years,  that  there  is  a  common  possibility  of  the  life  or  lives 
enduring  beyond  it,  and  the  freehold  interest  is  limited  to 
[  115  ]  take  eflect  on  the  dropping  of  the  life  or  lives.(^)  P'or,  in 
such  case,  the  freehold  interest  is  in  fact  limited  on  the  con- 
tingent expiration  of  the  term;  because  the  dropping  of  the 
life  or  lives  is  an  event  which  may  not  happen  before  the 
term  has  already  expired  by  effluxion  of  time. 

(b)  Fearne,  5,  note  (d,)  fifth  paragraph. 

(c)  Fearne,  281. 

(d)  See  Fearne,  21 — 24,  in  connexion  with  the  observations  made  on  the  op- 
posite case,  §  248 — 2.'i4. 


U.S.]  OF  EXECUTORY  INTERESTS.         [§258.       [11'3] 


CHAPTER  THE  FH^TH. 

FIRST  KXCEPTION  FROM  THE  FIRST  CLASS  OF  CONTINGENT 
REMAINDERS,  FORMED  HY  THE  USUAL  LIMITATION  TO 
TRUSTEES  FOR  PRESERVING  CONTINGENT  REMAINDERS. 

258  "  At  first  view,"  says  Butler,  "  it  may  appear  that 

the  usual  limitation  to  trustees  for  preserving  con- 
tingent remainders,  is  a  contingent  remainder  of  the  sort 
first  mentioned  by  Mr.  Fearnc.  In  cases  of  this  description, 
the  estate  is  conveyed  to  the  use  of  ^.  for  life  •,  and  after  the 
determination  of  that  estate  by  forfeiture  or  otherwise  in  his 
lifetime,  to  the  use  of  B.  and  his  heirs,  during  the  life  of  ^7., 
in  trust  for  ./?.,  and  to  preserve  the  contingent  remainders; 
and  after  the  decease  of  »^.,  to  the  use  of  the  first,  and  other 
sons  of  r^.  successively,  in  tail  male.  Here,  the  preceding  es- 
tate may  determine  by  one  of  two  modes ;  ^.'s  forfeiture  of 
his  life  estate,  or  ./^.'s  decease.  The  estate  of  the  trustees  is  to 
take  effect  in  the  first  event,  and  is  not  to  take  effect  in  the 
second.  The  remainder  to  the  trustees  may  therefore  ap- 
pear to  be  of  that  sort  which  is  contingent.  This  point  was 
fully  considered  in  the  case  of  Smith  d.  Dormer  v.  Piirk- 
/uirsl,  18  Viner,  413;  4  I3ro.  Gas.  Par.  p.  353.  In  that  case, 
the  judges  determined,  that  the  remainder  was  not  a  contm- 
gent,  but  a  vested  remainder."(«) 

Butler  does  not  seem  to  have  been  satisfied  with  the  de- 
cision :  at  any  rate  he  does  not  offer  to  evince  its  soundness; 
but  merely  states  tlie  fiict  that,  ila  lex  scrip/a  est.  Fearne, 
however,  has  gone  so  far  as  to  attempt  to  show  that  the 
limitation  in  question  is  strictly  and  properly  a  vested  re- 
mainder. 

It  is  with  the  most  unfeigned  deference  that  the  writer  of 
these  pages  ventures  to  question  the  justness  of  the  decision, 
when  founded  in  any  other  principle  than  that  of  necessity,  [117] 
most  especially  as  it  has  received  the  sanction  of  one  who 
was  as  remarkable  for  subtlety  of  discrimination  and  sound- 
ness of  judgment,  as  for  the  lucid,  eloquent,  and  masterly 
style  in  which  all  his  ideas  are  expressed.  But  the  author 
lias  less  hesitation  in  differing  from  the  opinion  of  the  judges, 
than  he  otherwise  should,  from  the  consideration  that  a  con- 
trary decision  would,  in  the  language  of  the  Lord  Chief 
Justice,  have  '"'overturned  all  the  settlements  for  two  hun- 
dred years  last  past  ;"(Z>)  and  therefore,  admitting  that  they 
really  thought  that  the  decision  to  which  they  came  was 
upon  principle  a  sound  decision,  yet  their  minds  must  have 
been  under  the  influence  of  an  almost  irresistible  bias ;  a 

(«)  Fearnc,  5,  note  (rf).  {b)  Willcs  Rep.  339. 


[117]        II.  5.]  AN  ORIGINAL  VIEW  [§25S. 

circumstance  which  is  quite  sufficient  to  remove  that  violent 
presumption  which  must  have  otherwise  existed  in  favour 
of  the  conchision  to  which  they  arrived.  But  it  is  far  from 
clear,  that  all,  or  most  of  them,  or  any  of  them,  except  Lord 
Chief  Justice  VVilles,  who  endeavoured  to  rest  the  decision 
upon  principle,  were  of  opinion  that  the  decision  was  any 
thing:  more  than  a  matter  of  mere  imperative  necessity.  For 
the  Lord  Chief  Justice,  after  alluding,  as  above  mentioned, 
to  the  dreadful  consequences  of  a  contrary  decision,  une- 
quivocally declares,  «="  If  therefore  I  could  not  make  this 
consistent  with  the  rules  of  law,  though  I  humbly  apprehend 
I  plainly  have,  I  should  rather  choose  to  put  a  construction 
on  these  words,  contrary  to  the  rules  of  law,  than  overturn 
many  thousand  settlements,  according  to  this  maxim,  found- 
ed in  the  best  reason.  Communis  error  facit  jus,  and  Ut  res 
inagis  vnleat  qiuim  pereat.''\c)  And  with  respect  to  the 
support  v/hich  has  been  given  by  the  learned  author,  who  is 
the  great  authority  on  the  subject  of  contingent  interests,  it 
can  scarcely  be  doubted  but  that  his  sentiments  would  have 
been  of  a  far  different  character,  had  he  not  been  blinded  by 
that  wholesome  prejudice  in  favour  of  judicial  opinions, 

*"  which  is  not  only  the  result  of  a  proper  modesty,  but  alsq 

the  necessary  concomitant  of  profound  and  extensive  learn- 
ing. 

Our  author,  immediately  after  instancing  the  remainder 

[lis]  ii^  question,  admits,  that,  as  to  its  taking  effect  in  possession, 
it  depends  entirely  on  a  contingent  determination  of  the  pre- 
ceding estate,  by  forfeiture  or  surrender.  But  he  introduces 
the  case  by  saying,  that  "  if  the  uncertainty  of  taking  effect 
in  possession,  should  form  any  part  of  our  notion  of  a  con- 
tingent remainder,  such  a  principle  would  scarcely  fail  to 
mislead  us  in  every  case  of  the  least  doubt. "(f/) 

See  §  170-         Now,  though  it  is  very  true  that  a  vested  remainder  may 

188.  be  uncertain  of  taking  effect  in  possession,  as  well  as  a  con- 

tingent remainder;  yet  nothing  can  be  further  from  the 
truth  than  the  supposition,  that  the  uncertainty  of  posses- 
sion, in  both  cases,  is  of  the  same  kind,  or  that  both  are 
equally  uncertain  of  actual  possession.  A  vested  remainder, 
as  we  have  already  seen,  docs  not  strictly  depend  on  any 
other  uncertainty  than  that  of  its  enduring  beyond  the  pre- 
ceding estate:  whereas, a  contingent  remainder  does  strictly 
depend  on  a  contingency  irrespective  of  its  own  duration. 
And  hence,  a  contingent  remainder  is  doubly  uncertain; 
being  uncertain  in  respect  of  some  contingency  collateral  to 
itself,  as  well  as  uncertain  in  regard  to  its  own  duration. 
Were  it  not  so,  indeed,  the  distinction  between  them  would 
be  merely  verbal.  It  is  humbly  submitted,  then,  that  the 
uncertainty  of  taking  eifect  in  possession,  except  that  kind 

(c)  VVilles  Rep.  339.  (rf)  Fearne,  217. 


11.5]  OF  EXECUTORY  INTERESTS.  [§25S.        [  US  ] 

of  uncertainty  which  is  connected  with  its  own  duration, 
should  form  a  part  of  our  notion  of  a  contingent  remainder: 
in  fact,  it  flows  from  the  very  same  fundamental  distinction 
as  that  which  is  commonly  taken  hetween  a  vested  and  a 
contingent  remainder.  Tiie  existence,  in  tiie  former,  of  a 
present,  ahsolute,  and  legally  transferrihle  right  to  the  pos- 
session, whenever  the  preceding  estate  may  determine,  and 
the  non-existence  and  uncertainly  of  that  right,  in  the  latter, 
does  indeed  constitute  the  dilference  hetween  them,  from 
which,  according  to  the  principle  of  definition  adopted  by 
Fearne,  they  receive  tiieir  denominations  of  vested  and  con- 
tingent. But  that,  as  we  iiave  already  seen  in  another 
place,  is  itself  founded  in  another  and  more  tangible  distinc- 
tion; namely,  tlie  non-existence,  in  the  one,  and  the  exist- 
ence, in  the  other,  of  a  contingency  irrespective  of  its  own 
duration,  on  which  the  enjoyment  strictly  depends.  And  [  11,9  ] 
from  this  fundamental  distinction,  the  further  dillerence  ne- 
cessarily arises;  namely,  the  certainty  of  possession,  in  the 
one,  (subject  to  any  such  chattel  or  other  interest  collateral 
to  the  seisin,  property,  or  ownership,  as  extends  to  the  pos- 
session,) and  the  uncertainty  of  it  in  the  other,  apart  from 
the  consideration  of  the  certainty  of  their  enduring  beyond 
the  preceding  estate. 

It  is  admitted  by  our  author,  that  the  remainder  iu 
question,  as  to  the  actual  possession,  entirely  depends  on  a 
contingent  determination  of  the  preceding  estate:  but,  in 
the  instance  before  us,  it  is  held  that  the  right  of  possession 
is  not  in  contingency,  but  in  actual  existence.  But  where 
is  the  foundation  of  the  distinction  between  this  case,  and 
the  first  class  of  contingent  remainders  entirely  dependitig 
on  a  contingent  determination  of  the  preceding  estate,  iu 
which  the  right  of  possession  is  contingent,  as  well  as  the 
possession  itself.^  If  the  remainder,  in  each  case,  depends 
entirely  on  a  contingent  determination  of  the  preceding 
estate,  what  ground  have  we  for  maintaining,  that  the 
remainder  is  only  uncertain  as  to  the  actual  possession,  in 
one  case,  though  it  is  uncertain,  both  as  to  the  right  of  pos- 
session, and  to  the  possession  itself,  in  the  other  ? 

In  order  to  discover  this,  we  seem  to  be  directed  to  the 
following  description  of  a  vested  remainder,  under  which, 
it  is  truly  said,  the  limitation  in  question  clearly  falls: 
^"  Wherever  the  preceding  estate  is  limited  so  as  to  deter- 
mine on  an  event  which  certainly  must  happen,  and  the  re- 
mainder is  so  limited  to  a  person  in  esse  and  ascertained, 
that  the  preceding  estate  may  by  any  means  determine 
before  the  expiration  of  the  estate  limited  in  remainder,  such 
remainder  is  vested. "(e) 

if)  Fearne,  217. 
Vol,   II.— 13 


[  119  ]        II.  5.]  AN  ORIGINAL  VIEW  [§258. 

If  every  remainder  which  falls  under  this  definition  is  a 
vested  remainder,  then  all  the  three  first  classes  of  remain- 
ders, which  are  previously  termed  contingent,  are  in  reality 
vested.  This  is  manifest  from  the  very  examples  by  which 
the  descriptions  of  these  remainders  are  illustrated  ;  and 
there  is  nothing  in  the  descriptions  themselves,  wiiich 
would  prevent  the  remainders  they  refer  to,  from  falling 
[  120  1  under  the  above  definition  of  a  vested  remainder.  Thus, 
even  where  the  remainder  depends  entirely  on  a  contingent 
determination  of  the  preceding  estate  itself,  the  preceding 
estate  may  be  "  limited  so  as  also  to  determine  on  an  event 
which  certainly  must  happen;"  as  in  the  identical  case, 
where  Ji.  makes  a  feofl'ment  to  the  use  of  B.^  till  C.  return 
from  Rome,  and  after  such  return  of  C,  then  to  remain  over 
in  fee ;  for,  by  limiting  to  B.  generally,  A.  gives  him  an 
estate  which  certainly  must  determine  at  his  decease,  if  not 
previously  determined  by  the  return  of  C.  So  in  the  second 
and  third  classes,  where  the  contingency  is  collateral  to  the 
expiration  of  the  preceding  estate,  it  is  evident  that  such 
estate  may  be  limited  to  determine  on  an  event  certain  ;  as 
in  the  very  cases  which  are  selected  by  Fearne,  where  a 
lease  is  made  to  Jl.  for  hfe,  remainder  to  B.  for  life,  and  if 
B.  die  before  ,/?.,  remainder  to  C.  for  life ;  or  where  a  lease 
is  made  to  J.  S.  for  life,  and  after  the  death  of  J.  D.,  the 
land  to  remain  to  another  in  fee. 

And  as  to  the  last  requisite,  "  that  the  preceding  estate 
may  by  any  means  determine  before  the  expiration  of  the 
estate  limited  in  remainder,"  that  is  common  to  every  re- 
mainder which  is  not  absolutely  void  in  its  creation;  and 
therefore,  it  is  conceived,  does  not  serve  to  render  the  above 
definition  of  a  vested  remainder,  any  the  more  distinctive 
and  precise. 

If  then  the  courts  had  adopted  the  above  description  of 
a  vested  remainder,  the  subtle  and  abstruse  learning  to  w^hich 
the  present  Essay  relates,  would  have  been  involved  in  the 
greatest  uncertainty,  inconsistency,  and  confusion. 

To  approximate  as  closely  as  possible  to  the  construction 
of  that  description,  without  falling  into  its  loose  and  dan- 
gerous generality,  the  true  statement  would  appear  to  be 
this  :  That  "  wherever  the  preceding  estate  is  limited  so  as 
to  determine  on  an  event  which  certainly  must  happen;  and 
the  remainder"  is  capable  of  vesting  in  possession  on  such 
evejit,  ivithout  requiring  the  concurrence  of  any  contin- 
gency lo  jjerfect  its  capacity  of  taking  effect  at  that  par- 
ticular period  ;  and  it  "is so  limited  to  a  person  in  esse  and 
ascertained,  that  the  preceding  estate  may  by  any  means 
determine  before  the  expiration  of  the  estate  limited  in  re- 
mainder ;  such  remainder  is  vested,"  For,  to  render  the 
remainder  vested,  if  it  is  legal,  it  must  be  capable  of  taking 


II.  5.]  OF  EXECUTORY  INTERESTS.  [§258.        [  121  ] 

effect  in  possession  (subject  as  aforesaid)  on  tiie  certain  ex- 
piration of  tiie  preceding  estate,  though  it  may  also  be  ca- 
pable of  taking  effect  on  a  contingent  determination.  For, 
what  conceivable  dilference  can  it  make  in  the  nature  of 
the  remainder,  that  the  preceding  estate  is  to  determine  on 
an  event  certain,  if  that  remainder  is  totally  incapable  of 
taking  effect  on  sucli  certain  determination  of  that  estate  ? 
Surely,  the  remainder  must  be  in  the  very  same  predicament 
as  it  would  be,  if  the  preceding  estate  had  had  no  such  capa- 
city of  determination.  Nor  must  tlie  concurrence  of  any 
contingency  be  requisite,  that  a  remainder  may  be  com- 
pletely capable  of  taking  effect  at  that  particular  period, 
when  the  preceding  estate  is  sure  to  expire  ;  for  then  the 
remainder  would  be  a  contingent  remainder  of  the  second 
or  third  class. 

After  showing  that  the  limitation  in  question  comes  ex- 
pressly within  the  terms  of  his  description  of  a  vested  re- 
mainder, our  Author  adds,  that  "as  this  conclusion  corres- 
ponds with  the  authorities  in  point,  it  may  fairly  be  con- 
sidered as  an  instance  of  the  justness  of  that  distinction  from 
which  we  can  thus  immediately  derive  it."(/)  Here,  we 
may  plainly  discover  in  what  way  he  was  betrayed  into  the 
inconsistency  at  which  the  foregoing  observations  are  point- 
ed. Influenced  by  a  laudable  reverence  for  authority,  he 
evidently  framed  such  a  definition  as  might  coincide  with 
views  which  had  received  so  high  a  sanction  ;  he  forcibly 
warped  his  own  original  sentiments,  so  as  to  make  them  ac- 
cord "  with  the  authorities  in  point." 

What,  in  this  particular  instance,  was  the  value  of  their 
opinion,  the  reader  will  speedily  determine,  as  well  from  the 
quotations  already  made  from  the  report  of  the  case,  as  from 
the  following  observations. 

In  delivering  the  unanimous  opinion  of  the  Judges,  before 
the  House  of  Lords,  in  affirmance  of  the  judgment  of  the 
Court  of  King's  13ench,  Lord  Chief  Justice  Willes  said  : 
"  We  think  there  are  but  two  sorts  of  contingent  remainders, 
which  do  not  vest ;  1st,  where  the  person  to  whom  the  re- 
mainder is  limited  is  not  in  esse  at  the  time  of  the  limitation; 
2dly,  where  the  commencement  of  the  remainder  depends 
on  some  matter  collateral  to  the  determination  of  the  partic-  [  122  ] 
ular  estate. "(^)  The  first  of  these  of  course  answers  to  the 
fourth  class  of  contingent  remainders,  according  to  Fearne's 
distribution,  and  the  second  obviously  includes  the  second 
and  third  of  his  classes.  But,  where  are  those  that,  in  the 
words  of  our  author  himself,  depend  entirely  on  a  con- 
tingent determination  of  the  preceding  estate  itself?  The 
very  kind  of  contingent  remainders  to  which  the  limitation 

J)  Fearne,218.  {g)  Willes  Rep.  337. 


[  122  ]        II.  5.]  AN  ORIGINAL  VIEW  [§25S. 

in  question  appears  to  belong,  are  entirely  omitted.  The 
kanicd  Judj?e(A)  has  no  idea  of  the  existence  of  such  con- 
tinf^ent  remainders.  How  then  can  we  wonder  at  his  deny- 
ing that  the  remainder  in  question  was  a  contingent  remain- 
der? And  what  worth  can  we  attach  to  his  argument? 
Dehile  fu ndamcntiLm  fallit  opus. 

But  the  learned  Judge,  in  order  "•  to  enforce  "  what  he  had 
said,  makes  an  observation  which  only  serves  as  an  addi- 
tional evidence  of  the  imperfect  state  of  his  acquaintance 
with  the  subject  under  discussion.  "Will  any  one,"  he  asks, 
"say  that  anything  can  descend  to  the  heir, that  did  not  vest 
in  the  ancestor?  So  that  if  nothing  vested  in  the  trustees, 
the  limitation  to  them  and  their  heirs  is  nonsensical.  And 
yet  this  word  'heirs'  has  been  put  in  every  such  limitation 
for  200  years  last  past."(f)  The  answer  to  this  is  to  be  found 
in  the  pages  of  Fearne  himself,  from  which  we  learn,  that 
■^  a  contingent  remainder,  executory  devise,  or  other  execu- 
tory interest  of  inheritance,  does  descend  to  the  heirs  of  the 
person  to  whom  it  is  limited,  if  he  dies  before  the  contin- 
gency happens,  unless  his  attaining  a  certain  age,  or  exist- 
ing at  some  particular  time,  subsequent  to  the  period  when 
he  died,  constitutes  or  by^implication  enters  into,  and  makes 
a  part  of,  the  contingency  itself,  on  which  such  interest  is  in- 
tended to  take  effect.  (A;) 

In  conclusion,  the  learned  Judge  puts  this  case:  "./^., 
tenant  in  fee,  grants  an  estate  to  /i.,  for  99  years,  determi- 
[  123  ]  nable  on  his  life;  supposing  B.  outlive  the  term,  or  surren- 
der, or  forfeit,  no  one,  I  believe,  will  say  but  that  A.  may 
enjoy  the  estate  again.  If  so,  a  contingent  freehold  was  in 
liim  during  the  life  of  B.,  for  it  could  not  be  in  B.;  because 
he  had  only  a  chattel  interest;  and  it  could  not  be  in  any 
one  else  ; — and  if  it  were  in  Ji.^  it  must  be  a  vested  interest, 
for  it  was  never  out  of  him;  and  if  .^.  had  a  contingent  free- 
hold during  the  life  of  Z?.,  no  one  can  say  but  that  he  might 
grant  it  over  ;  and  if  he  do,  it  must  be  of  the  same  nature  as 
it  was  when  it  was  in  Jl.,  and  consequently  a  vested  free- 
hold. And  this  case  I  have  put,  is  expressly  held  to  be  law 
in  Co.  Lit.  42  a;  in  Cholmley's  Case,  2  Co.  51  a;  and  in  the 
Year  Book  of  Edw.  the  III.,  which  is  there  cited."(/) 

Now  taking  it  for  granted,  that,  in  applying  the  terms 
vested  and  contingent  so  indiscriminately  to  the  same  in- 
terest, he  only  uses  the  term  contingent  in  relation  to  the  ac- 
tual enjoyment,  the  fact  that  ^.  had  a  vested  interest,  can- 


(/t)  In  the  ninth  page,  Fearne  observes,  that  "  contingent  remainders  appear 
to  have  been  generally  distributed  into  three  kinds  only,  namely,  the  three  last 
specified  in  the  above  division  of  them." 

{i)  Wilies  Rep.  338.     {k)  Fearne,  304— 5,  5.52—05.     (Z)  Willes  Rep.  339. 


11.5.]  OF  EXECUTORY  INTERESTS.  [§25S.        [  125  ] 

not  be  disputed;  but  notliiiic;  can  ])C  inferred  from  this,  to 
prove  that  the  limitation  to  trustees  to  preserve  <S:c.  is  strict- 
ly and  properly  a  vested  remainder. 

As  A.  granted  only  a  chattel  interest  to  Z?.,  without  niak- 
in£^  any  further  disposition  of  the  land,  the  freehold  and  in- 
lieritancc  of  course  remained  in  him  in  its  original  state ; 
and  was  therefore  a  vested  interest;  and  if  A.  afterwards 
granted  over  the  freehold  and  inheritance  to  C,  it  would 
still  be  a  vested  interest.  The  mere  transfer  of  it  into  other 
hands,  could  not  change  it  into  a  contingent  interest ;  for,  as 
it  was  originally  sure  to  vest  in  possession,  so  it  continued 
to  possess  a  certainty  of  possession,  since  there  was  still  a 
period  certain  to  arrive,  namely,  the  death  of  J5.,  or  the  ex- 
piration of  the  99  years,  at  which  it  must  ultimately  take 
effect  in  possession,  though  it  might  possibly  take  effect  at 
a  previous  time,  in  consequence  of  the  forfeiture  or  surren- 
der of  Z?.'s  estate. 

And  if  the  subsequent  grant  to  C.  had  not  been  of  the 
entire  inheritance,  subject  to  the  term,  but  yet  had  been  of 
an  estate  for  the  life  of  the  grantee,  '"and  such  estate  had 
been  expressly  limited,  or  had  apparently  been  intended  to 
take  effect,  on  the  death  of  B.,  as  well  as  on  any  anterior 
contingent  determination  of  ^.'s  estate,  the  interest  grant-  [  124  ] 
cd  to  C,,  would  be  vested, (rn)  because  it  would  be  sure 
ultimately  to  take  effect  in  possession,  if  it  lasted  till  the  cer- 
tain expiration  of  the  preceding  interest,  or  in  other  words, 
if  C  survived  B.,  and  did  not  previously  surrender  or  for- 
feit his  estate. 

But  \{  A.  had  merely  granted  over  an  estate  during  the 
life  of  i>.,  to  commence  upon,  and  only  upon,  a  contingent 
determination  of  ^.'s  estate,  in  ^.'s  lifetime,  which  is  the 
only  one  of  the  three  hypotheses  that  is  in  any  way  analo- 
gous to  the  limitation  to  trustees  to  preserve  contingent  re- 
mainders, this  subsequent  interest,  though  derived  out  of  the 
vested  interest  of ./?.,  would  have  been  a  contingent  interest. 
For,  in  that  case,  instead  of  being  sure  to  take  etfect  at  a 
period  certain  to  arrive,  namely  at  the  death  of  J5.,  or  the 
expiration  of  the  99  years,  such  subsequent  derivative  in- 
terest would  have  no  other  connexion  with  such  a  period 
than  this ;  that  if  such  interest  should  have  already  taken 
etfect, it  must  at  that  period  inevitably  expire;  or  if  it  should 
not  have  already  taken  effect,  it  must  then  for  ever  cease  to 
have  any  capacity  of  taking  effect.  In  regard  therefore  to 
the  commencement  of  possession,  and  the  existence  of  the 
right  of  possession,  this  subsequent  interest  nuist  entirely 
depend  on  the  chance  of  some  anterior  contingent  determi- 


(Mi)  See  §  259. 


[  124  ]        II.  5.]  AN  ORIGINAL  VIEW  [§258. 

nation  ol"  the  preceding  estate  ;  and  consequently  it  must  be 
a  contingent,  instead  of  a  vested  interest. 

The  possibility,  it  must  be  observed,  which  ,/l.  had,  of 
having  the  land  before  the  death  of  B.,  was  not  a  distinct 
See  §  46-7,    preceding  interest  or  portion  of  the  seisin,  property,  or  owner- 
50,52,  56.     ship,  whether  vested  or  contingent,  but  a  mere  possibility  of 
an  earlier  possession,  annexed  to  what,  in  relation  to  the 
possession,  would  be  commonly  said  to  be  his  reversion  in 
fee,  or,  to  what,  in  relation  to  the  seisin,  property,  or  owner- 
ship, and  more  strictly  speaking,  was  a  present  vested  inter- 
See  §  111c.    est  subject  to  a  term.     And  hence,  though  the  subsequent 
grant  oi  Ji.  could  not  operate  as  a  transler  of  a  mere  possi- 
bility to  strangers,  contrary  to  the  rule  of  the  common  law,  yet 
it  was  not  a  transfer  of  an  ancient  vested  interest,  but  a 
[  125  ]        creation  of  a  new  interest  out  of  a  vested   interest,  that  is, 
out  of  the  freehold  and  inheritance  remaining  in  him  sub- 
ject to  the  term  first  created.     And  if  an  interest  were  neces- 
sarily vested,  because  derived  out  of  a  vested  interest,  we 
should  never  have  heard  of  such  a  thing  as  a  contingent  re- 
mainder. 

It  is  humbly  submitted  that  enough  has  been  said,  to  prove 
beyond  a  doubt,  that  tiie  judgment  above  cited,  is  defensible 
upon  no  other  ground  than  that  of  imperative  necessity ; 
upon  no  other  principles  than  those  which  are  expressed  in 
the  maxims  so  strongly  urged  by  the  Chief  Justice,  Corn- 
munis  error  facit  jus,  and  Ut  res  magis  valeat  quam  pereat. 
When  the  question  lies  between  the  validity  of  thousands  of 
settlements,  on  the  one  hand,  and  the  inviolability  of  an  ab- 
stract principle,  on  the  other;  we  may  well  be  warranted  in 
making  an  exception,  when  we  can  do  so  without  derogat- 
ing from  the  general  operation  of  the  rule  in  such  a  manner 
as  to  produce  mischiefs  far  more  serious  than  those  we  desire 
to  avoid.  To  the  decision  itself,  then,  no  objection  can  justly 
be  urged,  so  far  as  it  concerns  the  principal  case.  The  point 
that  is  here  contended  for,  is  this — and  it  is  one  of  the  ut- 
most moment — that  that  decision  should  not  be  allowed  to 
aflect  the  general  doctrine ;  that  the  limitation  in  question 
should  on  no  account  be  viewed  as  a  proper  specimen  from 
which  an  accurate  definition  of  a  common  vested  remainder 
may  be  collected ;  that  it  should  not  be  considered  as  disaf- 
firming, but  merely  as  constituting  a  solitary  exception  to, 
the  general  rule  before  proposed — that  a  vested  remainder 
does  not,  and  a  contingent  remainder  does,  strictly  depend 
on  a  contingency  irrespective  of  its  own  duration  ;  and  con- 
sequently, apart  from  the  relative  uncertainty  of  its  dura- 
lion,  and  subject  to  any  chattel  or  other  interest  collateral  to 
the  seisin,  property,  or  ownership,  a  vested  remainder  is  cer- 
tain, whereas  a  contingent  remainder  is  not  certain,  of  taking 
effect  in  possession  or  enjoyment. 


II.  fi.J        OF  EXECUTORY  INTERESTS,  [§259—201.       [  126  ] 


CHAPTER  THE  SIXTH. 

SECOND    EXCEPTION    FROM    THE    FIRST  CLASS   OF  CONTINGENT 
REMAINDERS. 

259  I.  Although  a  remainder,  so  far  as  regards  the  Whore  a  re- 
express  words  of  its  limitation,  may  depend  entirely  maiiulur  li- 

»  and  simply(«)  on  a  contingent  determination  of  the  preced-  mitcd  on  a 
ing  estate ;  yet,  in  the  case  of  a  will,  if  it  is  morally  certain  contingent 
that  it  was  intended  to  take  effect  either  on  the  certain  ex-  detcrmina- 
piration,  or  on  a  contingent  determination,  of  such  estate,  ^'o"  of  the 
whichever  shall  first  happen ;  it  will  be  allowed  to  do  so,  and,  preceding 
therefore,  will  be  construed  a  vested  remainder.       estate,  may 

260  Thus,  ^  where  a  testator  has  devised  to  liis  wife,  takecflecton 
for  her  life,  if  she  shall  so  long  continue  his  widow :     *^  ccr  am 

and,  in  case  she  marry,  to  ./?.  in  fee  ;  the  courts  have  held  ^jj^^^Qf 
that  the  remainder-man  is  to  take  either  on  the  death  of  the 
tenant  for  life,  or  on  her  marriage  ;  and  have  therefore  con- 
strued the  limitation  to  be  a  vested  remainder.(6)  And  this 
interpretation  is  clearly  just.  In  wills,  the  intention,  so  far 
as  it  is  consistent  with  the  rules  of  law,  ought  to  be  carried 
into  effect;  and  the  testator  certainly  intended  that  */!.  should 
take  in  either  event ;  because,  it  is  impossible  to  discover 
atiy  reason  why  ^.  should  be  the  object  of  the  testator's 
bounty,  in  case  the  particular  estate  should  determine  by 
the  marriage  of  the  tenant  for  life,  if  he  were  to  have  nothing, 
in  case  it  determined  by  her  decease ;  since  her  marriage 
could  be  a  ground,  neither  for  the  testator's  disliking  and 
disinheriting  the  heir  at  law,  nor  for  his  desiring  to  benefit 
,/?.;  and,  therefore,  no  reason  can  be  drawn  from  the  differ-  [  127  J 
ence  in  the  events  themselves,  why  *,^.  should  take  in  one 

event  more  than  in  another. 
261  II.  But  a  remainder,  which  is  expressly  to  take  Where  a  re- 

effect  on  a  contingent  determination  of  the  preced-  mainder  can 
ing  estate,  will  not  be  allowed  to  take  effect  on  the  certain  only  take 
expiration  of  the  preceding  estate,  unless  it  is  morally  cer-  etiect  on  the 
tain  that  such  was  the  intention  of  the  testator.  contingent 

And,  therefore,  *=  where  the   devise  was   to  ^^.   for   life,  expiration  of 
remainder  to   his  first  and  other  sons  in  tail;  on  condition  ^''f^P^'^ceding 
that  he  and  his  issue  male  should  assume  a  particular  name;  estate, 
and  in  case  he  or  they  refused,  then,  that  devise  to  be  void; 
and,  in  such  case,  the  testator  devised  the  lands  over.     »'?. 
survived  the  testator,  complied  with  the  condition,  and  then 

(a)  See  Jordan  v.  Holkman,  Amb.  209 ;  as  stated,  Fcarne,  240. 

{h)  Luxford  V.  Chceke,  3  Lev.  125  ;  Raym.  427  ;  referred  to,  Fcarne,  5,  note 
(d),  and  stated,  Fearno,  239;  Gordon  v.  Adolphiis,  3  1'.  C.  Toml.  cd.  306,  as 
staled,  1  Jannan  on  Wills,  731. 


[   127  ]        II.  7.i.] 


AN  ORIGINAL  VIEW  [§262,263. 


died  without  issue ;  and  it  was  held  in  B.  R.,  on  a  case  from 
Chancery,  and  ultimately  in  the  House  of  Lords,  that  the 
limitation  over  did  not  arise.(c)  In  this  case,  the  contingent 
determination  of  the  estate,  namely  by  the  non-assumption 
of  the  name,  was  so  improbable,  that  the  existence  of  an 
express  limitation  over  in  that  event,  could  afford  but  a 
slight  ground  for  supposing  that  the  person  to  whom  it  was 
made,  was  also  intended  to  take  on  the  certain  expiration  of 
the  estate  by  failure  of  issue. 


[   128  ] 


CHAPTER  THE  SEVENTH. 


SECTION  THE  FIRST. 

Certain  Cases  of  Vested  Remainders,  and  the  first,  second, 
and  third  sorts  of  Contingent  Remainders,  and  the 
seventh  kijid  of  Spri7iging  Interests,  distinguished  from 
Conditional  Limitations. 

The  grand     We  have  already  seen  that  the  grand  distinction  262 

distinction  between  remainders  and  conditional  limitations,  is, 
between  a  that  a  contingent  remainder  is  limited  to  take  effect  in  pos- 
rcmainder  session,  or  enjoyment,  or  in  both,  after  the  regular  expira- 
and  a  condi-  tiou  of  the  preceding  estate  ;  whereas  a  conditional  limita- 
tional  limita-  tion  is  limited  to  take  effect  in  that  manner  before  the  par- 
tion.  ticular  estate  has  filled  up  the  original  measure  of  its  dura- 

See  §  148-9,  tion,  so  as  to  operate  in  defeasance  thereof,  instead  of  by 
159,  160.       ^vjiy  of  remainder  after   it.     To  exemplify  this  disthiction 
the  more  clearly,  and  to  enable  the  student  to  apply  it  with 
certainty  to  the  more  difficult  cases,  the  following  rules  and 
examples  may  here  be  given. 

I.  '^  Where  the  subsequent  interest  depends  on  a  263 

condhion  or  contingency  which  is  inserted,  as  a 
regular  special  or  collateral  limitation,  in  the  clause  by  which 
the  preceding  estate  is  created,  and,  therefore,  forms  one  of 
the  original  bounds  to  the  quantity  of  that  estate  ;  there,  the 
subsequent  interest  is  a  remainder,(«)  if  the  preceding  inter- 
est does  not  carry  the  fee ;  or,  such  subsequent  interest  is  a 
springing  interest  of  the  seventh  kind,  if  the  preceding  inter- 
est docs  carry  the  fee.     For,  instead  of  curtailing  the  pre- 


\.  Where  a 
subsequent 
interest  de- 
pends on  the 
determina- 
tion of  the 
prior  interest 
by  force  of  a 
regular  spe- 


(c)  Amhurst  v.  Donelly,  8  Vin.  Ab.  221,  pi.  21,  affirnned  in  Dom.  Proc.  5  B. 
P.  C.  Torn!,  cd.  2.54 ;  as  "stated,  1  Jarm.  on  Wills,  730. 
(a)  Sec  Fearnc,  10,  note  (/t). 


II.  7.  1.]     OF  EXECUTORY  INTERESTS.  [§264—266.        [  12S  ] 

ceding  estate,  it  is  not  to  take  eficct  in  possession,  till  an  cial  or  colla- 
event  upon  which  the  preceding  estate  would  have  expired,  teral  limita- 
even  if  it  liad  been  followed  by  no  other  interest.     And,  in        [   129  ] 
case  the  event  upon  which  the  subsequent  interest  is  limited,  ti''>n»  and 
is  a  contingent  one,  and  such  subsequent  interest  depends  ^^^^^  subsc- 
entirely  on  that  event,  it  is  a  contingent  remainder  of  the  a^^nt  inter- 
first  class.     As,  where  an  estate  is  limited  to  the  use  of  .^.  est  is  a  rc- 
and  the  iieirs  of  his  body,  till  C.  returns  from  Rome,  or  if  .^.  ^^"^^  gp|^i„„ 
and  the  heirs  of  liis  body  shall  continue  to  be  Lords  of  the  .^^  inJcresl' 
Manor  of  Dale  ;  and  after  C'.'s  return,  or  on  ^.  and  his  issue  ^j.''^,^^  ^^^^ 
ceasing  to  be  Lords  of  the  Manor  of  Dale,  (within  the  period  ^^^^^  ^-^^^^ 
prescribed  by  the  rule  against  perpetuities,)  then,  to  the  use  g^^  ^  y^.^^ 
of  B.  in  fee.  159^  117^  126, 184.  See  §  706. 

264  II.  And  where  the  subsequent  interest  depends  II.  Where  a 
on  a  condition  or  contingency,  which  is  not  insert-  subsequent 

ed,  as  a  regular  special  or  collateral  limitation,  in  the  clause  interest  dc- 
by  wlhcli  tlie  prior  interest  is  created;  (§  34 — S)  still,  if  it  is  pendson  the 
subjoined  to  such  clause,  so  as  to  be  capable  of  being  con-  dctcrmina- 
nected  with  and  construed  a  part  of  it,  as  an  irregular  spe-  tion  of  the 
cial  or  collateral  limitation;  (§  39)  in  such  case,  if  the  pre-  prior  interest 
ceding  interest  does  not  amount  to  tiie  fee,  the  subsequent  hyiorccofan 
interest  is  a  remainder.  (§  159)     And  if  it  entirely  depends  "■'■<jgul»rspe- 
on  the  contingency  forming  such  limitation,  it  is  a  contingent  ^'^  °^  ^?  ^' 
remainder  of  the  first  class.  (§184)     But  if  it  is  also  capable  ^|^^|J  and  such 
of  taking  eflect  on  the  certain  expiration  of  the  preceding  subsequent 
estate,  it  is  a  vested  remainder.  (§  183)     "If  the  preceding  i^iercst  is  a 
interest,  however,  does  amount  to  the  fee,  the  subsequent  remainder, 
interest  is  a  springing  interest  of  the  scvemh  kind, (a)     See  qj.  ^  spring- 
§  117,  126,  165.  ing  interest  of  the  seventh  kind. 

265  Thus,  if,  as  it  has  been  previously  observed,  ''a  Illustrations, 
devise  is  made  to  ^^.  for  life,  on  condition  that  he 

do  not  marry  C,  with  remainder  to  B.;  this  is  construed  as 
if  it  were  to  ^.,  until  he  shall  marry  C;  and  then,  or  upon  See  §34, 38, 
death,  to  B.;{b)  and  the  subsequent  limitation  is  a  41. 

266  vested   remainder.      This  proviso,  when  viewed 
apart  from  the  limitation  over,  is  strictly  a  condi- 
tion subsequent.     But  it  is  not  construed  as  such;  because  if  Sec  §  12, 
the  heir  of  the  devisor  had  entered  in  case  of  a  breach  there-  15-19. 

of,  'his  entry  would  have  defeated  the  remainder,  as  well  as        [  130  J 
the  particular  estate,  though  the  condition  was  never  intend- 
ed to  defeat  the  remainder;  because,  by  entry  or  claim,  the 
livery  made  upon  the  creation  of  the  estates  was  defeated. (c) 

(a)  See  Fttlmerston  v.  Steward,  cited  Cro.  Jac.  592  ;  as  stated,  Fearnc,  395. 

{b)  Burton's  Compcndiunn,  §  829.     See  also  Scatterwood  v.  Edge,  as  stated, 
Fearne,  237. 

(f)  Butler's  note,  Co.  Litt.  203  b(l).     Burton's  Compendium,  §  828  ;  Fearne, 
261,  270,  381,  note  (a). 
Vol.  II.— 14 


[  130  ]        II.  7.  i.]  AN  ORIGINAL  VIEW        [§2G7— 269. 

See  §  14.  Nor  is  the  proviso  a  mixed  condition,  with  a  con-  267 

See  §  148-9.  ditional  limitation  limited  thereon.    It  may  perhaps 
See  6  149a.   be  nrged,  that  as  conditional  limitations  are  admissible  in 
devises,  it  should  rather  be  construed  as  if  it  were  to  A.  for 
life,  but  if  he  marry  C,  then  the  land  shall  immediately  go 
to  B.;  in  which  case,  B.  would  take  by  way  of  conditional 
limitation,  instead  of  by  way  of  remainder.     But  this  con- 
See  §  196-7.  struction  would  be  at  variance  with  the  general  rule,  where- 
by a  limitation  shall  be  construed  as  a  remainder  rather 
than   as  an  executory  devise.     Besides,  in   that   case,  C. 
would  not  take  in  remainder  after  ..^.'s  death,  as  he  would 
according  to  the  other  construction,  and  as  it  would  seem  to 
be  intended  that  he  should  ;  and  this  would  be  at  variance 
with  another  general  rule,  that  an  interest  shall  be  construed 
See  \  200-9.  to  be  vested,  rather  than  contingent. 

^If  such  a  sentence  were  contained  in  a  deed,  it  26S 

has  been  thought  that  it  would  be  construed  as  a 
condition  subsequent,  but  as  merely  inefTectual  and  void. (a?) 
But  the  better  opinion  would  seem  to  be  that  such  a  sentence 
would  be  construed  as  an  irregular  special  limita- 
See  §  14-19.  tion,  even  in  a  deed.     "Though  strict  words  of  269 

condition,"  says  Blackstone,  "be  used  in  the  crea- 
tion of  the  estate ;  if,  on  breach  of  the  condition,  the  estate 
is  limited  over  to  a  third  person,  and  does  not  immediately 
revert  to  the  grantor  or  his  representatives,  (as  if  an  estate 
be  granted  by  .^.  to  ^.,on  condition,  that,  within  two  years, 
B.  intermarry  with  C,  and  on  failure  thereof,  then  to  D.  and 
his  heirs,)  this,  the  law  construes  to  be  a  limitation,  and  not 
a  condition."(e)  It  must  indeed  be  admitted,  that  the  rea- 
son given  by  the  learned  Judge  for  this  construction,  is 
founded  in  a  mistake  or  oversight,  when  he  adds,  that  "  if  it 
were  a  condition,  then,  upon  the  breach  thereof,  only  A. 
[  131  ]  and  his  representatives  could  avoid  the  estate  by  entry,  and 
Z>.'s  remainder  might  be  defeated  by  their  neglecting  to 
enter;"  whereas  Z>.'s  interest,  as  we  have  seen,  would 
See  §  266.  equally  be  defeated  by  the  very  entry  itself,  as  much  as  by 
the  neglecting  to  enter.  Yet,  the  doctrine  itself,  that  the  words 
in  question  constitute  a  limitation,  seems  to  be  perfectly  cor- 
rect. And  it  would  also  seem  clear,  that,  by  such  a  limita- 
See§24,26,  tion,  the  learned  Judge  meant  a  limitation  in  the  original 
34.  sense  of  a  limit  or  bound,  and  not   a   conditional  limita- 

See  148-9.     tion.     For,  the  words  would  be  void  as  a  conditional  limi- 
See  §  149a.   tation  ;   because  a  conditional  limitation  could  only  be  by 
way  of  use  or  executory  devise.     And,  even  if  the  grant 
mentioned   by  Blackstone  had  been  by  way  of  use,  yet 


(«i)  Burton's  Compendium,  §  828. 

(e)  3  Bl.  Com.  155.     Sec  also  Shop.  T.  124,  note  (16). 


II.  7.  i.]        OF  EXECUTORY  INTERESTS.  [§270.        [131] 

the  construing  the  words   to   be  a  conditional  limitation, 
would  have  been  at  variance  with  the  rule  for  construing 
a  disposition  to  be  a  remainder,  rather  than  an  executory  See  §  196-9. 
interest  not  by  way  of  remainder.     There  are  two  did'er- 
ences,  indeed,  between  the  case  put  by  Blackstone,  and  the  See  §  269. 
preceding  case.    In  the  first  place,  the  proviso  mentioned  by  See  §  265. 
Burton,  is   an    irregnlar   special    limitation,  amounting  in  See  §  39. 
effect  to  a  direct  regular  limitation  ;  namely,  to  a  gift  to  ^1.  <^^.g  ^  41  _ 
for  life,  until  he  marry  C;  and  upon  the  death  of  ^^.,  or  upon 
^.'s  marriage  with  C,  then  to  B.;  while  the  proviso  men- 
tioned by  Blackstone  is  an  irregular  special  limitation,  capa-  See  §  39. 
ble,  without  doing  violence  to  the  words,  of  being  resolved  See  §  42. 
into  an  indirect  limitation  ;  namely  to  a  grant  to  B.  for  life, 
B.  intermarrying  with  C.  within  two  years;  and  in  default, 
&c.     And  secondly,  in  the  clause  in  Burton,  the  remainder 
does  not,  while  in  the  clause  in  Blackstone,  the  remainder 
does,  in  terms,  depend  on  the  breach  of  the  condition.     But 
these  differences  do  not  seem  to  constitute  any  material  dis- 
tinction between  them,  so  far  as  the  present  question  is  con- 
cerned.     Nor,  upon  principle,  does  it  appear  at  all  neces- 
sary or  consonant  to  a  sound  and  enlightened  interpreta- 
tion, to  adopt  a  stricter  construction  in  the  case  of  a  deed, 
than  in  the  case   of  a  will,  as   regards   the   point   under 

discussion. 
270  III.  But,  '"where  the  subsequent  interest  depends  m.  Where  a 

on  a  condition  or  contingency  that  is  not  inserted,  subsequent 
as  a  regular  special  or  collateral  limitation,  in  the  clause  by  interest  de- 
which  the  preceding  estate  in  possession  or  in  remainder,  is        [   132  ] 
created, (/)  nor  so  subjoined  to  such  clause,  as  to  be  capable  pends  on  the 
of  being  connected  with  it,  as  an  irregular  special  or  collate-  dctermina- 
ral  limitation,  so  as,  in  either  case,  to  form  one  of  the  origi-  tion  of  the 
nal  bounds  to  the  quantity  of  interest  (§  34-43);  and  the  prior  interest 
words  require  an  immediate  transfer  of  the  seisin,  property,  by  force  of  a 
or  ownership,  to  the  person  entitled  to  the  subsequent  inter-  ""'^ed  condi- 
est,  as  soon  as  such  condition  or  contingency  shall  happen  ^'°"'  '"^^ 
or  be  fulfilled  ;  there  the  subsequent  limitation  is  not  a  re-  ^"^  *  ^."  ''^* 
mainder.(^')     ''Nor  is  it  good,  at  the  common  law,  in  any  ^"^^"^  ^^^^  J 
other  way.(A)  For,  if  the  condition  were  allowed  to  operate  i.p„-,ainder  • 
as  a  condition  subsequent,  so  as  to  defeat  the  preceding  in-  c  jr^Q   -^^q 
terest,  it  would  defeat  the  subsequent  interest  at  the  same  ,^qj.  jg'jjgQQj 
time;  and  therefore,  if  the  instrument  takes  effect  at  com-  ^t  the  co'm- 
mon  law,  the  condition,  and  the  subsequent  limitation  de-  mon  law  in 
pendent  thereon,  must  be  construed  as  void.     But,  if  the  any  other 
limitations  are  by  devise  or  by  way  of  use,  the  condition  way, 

. — See  §  12, 15- 

(/)  See  Fearne,  10,  note  (/t).     See  also  Coganv.  Cogan,  Cro.  19,  266. 

Eli/..  360  ;  as  stated,  Fearne,  263.  but  it  may  be 

(g)  lb.  good,  il  by 

(h)  See  resolution  in  Coltliirst  v.  Bejushin,  Plowd.  23  ;  as  stated,  way  of  use 

Fearne,  263.  or  devise,  as 


[  132  ]        II.  7.  i.]  AN  ORIGINAL  VIEW         [§271—274. 

an  interest  will  then  be  good  as  a  mixed  condition,  and  the  '  subsequent 
inuler  a  con-  limitation  will  be  good  as  a  conditional  limitation. (/)  §  14, 
ditional  limi-  20,  14S — 9a. 

tation.  To  illustrate  these  points,  we  may  observe,  that  271 

Illustrations,  if,  in  the  case  put  by  Blackstone,  the  grant  were 
See  §  269.     to  B.,  on  condition,  that  if  within  two  years  he  do  not  inter- 
marry with  C,  then  to  D.  and  his  heirs ;  this,  it  is  conceived, 
would  be  construed  as  a  void  condition.     For,  the  words 
which  specify  the  event  on  which  the  estate  is  to  go  over, 
form,  with  the  words  carrying  the  estate  over,  but  one  un- 
divided sentence ;  so  that  the  words  specifying  the  event, 
are  not  capable  of  being  dissevered  from  the  words  carrying 
the  estate  over,  so  as  to  be  connected  with  the  preceding 
See  §20,  34- words  creating  the  prior  estate,  and  thereby  be 
42.  construed  to  mark  out  the  original  limits  of  that  272 

estate.  And  this  view  is  supported  by  a  passage 
in  Sheppard's  Touchstone,  where  it  is  said,  that  "if  a  lease 
be  made  to  J.  S.,  on  condition  that  if  such  a  thing  be  or  be 
[  133  ]  not  done,  that  the  land  shall  remain  to  J.  D.,  or  that  J.  D. 
shall  enter ;  in  this  case  J.  D.  shall  never  take  advantage  of 
this  condition."(A;) 

But  if  the  limitation,  instead  of  being  at  the  com-  273 

mon  law,  were  'by  devise,(/)  or  if  it  were  a  grant 
to  Ji.,  to  the  use  of  B.,  on  condition,  that  if,  within  two 
years,  B.  do  not  intermarry  with  C,  then  to  the  use  of  D. 
See§  148-9.  and  his  heirs;  this  would  be  good  as  a  conditional  limita- 
tion. 

And,  if  the  contingency  were  not  introduced  by        273a 
the   technical   words   of  a  condition   subsequent, 
See  §  18, 19.  namely,  "  on  condition,"  or  "  provided,"  or  "  so  that,"  but 
'     *  by  the  words  '""  and  if,"  then  the  subsequent  interest  to  B. 
and  his  heirs  might  have  been  good  as  a  remainder.(7?2) 
For, 
IV.  Where  a      IV.  Where  the  subsequent  interest  depends  on  274 

subsequent  an  event  which,  instead  of  being  inserted  in,  or 
interest  dc-  capable  of  being  connected  with,  the  clause  by  which  the 
pends  on  a  -^nor  interest  is  created,  is  independent  of  the  measure  of 
condition  jij^t  estate  ;  (§  34—43)  but  the  words  merely  import  an  in- 
precedent  tention  that  on  the  occurrence  of  the  event  a  present  right 
unconnected  ^^  future  possession  or  enjoyment,  or  both,  should  accrue  to 
with  the  de-  ^j^^  party  entitled  to  the  subsequent  interest;  or,  in  other 
termination  ^jg  ^y^^^  s^^^h  interest  should  then  vest  in  right ;  in  such 

of  the  prior  ' 


(i)  See  Fearne,  10,  note  (/t). 

(k)  Shep.  T.  153. 

(Z)  See  Sheffield  v.  Lord  Orrery,  3  Atk.  282  ;  as  stated,  Fearne,  239.  But 
See  Lord  Hale's  remarks  in  Lady  Ann  Fry's  Case,  1  Vent.  203,  as  cited, 
Fearne,  239,  which,  however,  must  he  regarded  as  inaccurate. 

(m)  See  Collhirst  v.  Bejushin,  Flowd.  23 ;  as  stated,  Fearne,  263. 


II.  7.  ii.]    OF  EXECUTORY  INTERESTS.  [§275—278.        [  133  ] 

case,  tlie  subsequent  interest  is  a  contingent  remainder  of  tlie  interest,  and 
second  or  third  class.     (§  79—81,  159,  185— G.)      »s  a  contni- 
275  Thus,  "where  land  is  limited  to  the  use  of  .i.;  f^^  renuun- 

and  if  C.  should  die  in  ^.'s  lifetime,  then,  after  der  capable 
^.'s  decease  to  B.  and  his  heirs;  the  limitation  to  B.  '^^  ^  ^^^^^^^^^^t 
remainder,  and  not  a  conditional  limitation;  because,  the  ^^^^^^^^^» 
interest  limited  to  B.  is  not  to  take  ellect  in  possession  or  :^^^^^  ^  ^^^^^j 
enjoyment,  but  merely  to  vest  in  right,  on  the  death  of  C.  ,.^.,-f^ai,jjer 
in  v^/.'s  lifetime.     During  the  joint  lives  of  ^.  and  C    xi  is  a  m^^^^^^j^^g^ 
contingent  remainder;  and  on  the  death  ol  C.  m  Ji.  s  lile-         x  ,40  n 
time,  it  does  not  vest  in  possession,  but  merely  becomes  ^^ce  <}  1     -  . 
changed  into  a  vested  remainder,  which  continues,  as  before, 
to  be  expectant  on  the  regular  expiration  of  the  particular        [  134  ] 
estate  by  the  decease  oi  Jl.{n)     And  "so  if  land  is  leased  to 
one  for  life,  and  if  such  a  thing  happen,  then  to  remain  to 
B.{o.) 

SECTION  THE  SECOND. 

Practical  Suggestions  connected  with  the  Distinctions  in 
the  First  Section. 

277  When  the  practitioner  is  desirous  of  making  a  There  are 
prior  interest  defeasible  on  a  particular  contingency,  cases  where 

and  of  causing  a  subsequent  interest  to  arise  on  the  same  it  may  seem 
contingency;  it  may  seem  to  him  immaterial,  whether  he  doubtful  in 
accomplishes  this  general  end  by  making  that  contingency  ^^'1^^  way  a 
the  subject  of  a  special  or  collateral  limitation  to  the  prior  F'^'"  '"Merest 
interest,  (§  34—42)  and  causing  the  subsequent  interest  to  ^^'^""^ij^^^i^jg '^" 
arise  on  the  same  contingency,  as  a  condition  precedent,  (§  ^^^  ^  subs'e- 
43,  13)  by  way  of  contingent  remainder,  or  of  a  springing    ^^^^^  j^^^^.^ 
executory  interest;  or  whether  he  makes  that  contingency  ^^^  ^^  ^^^^ 
the  subject  of  a  mixed  condition,  and  causes  the  prior  inter-  ^^^^^ 
est  to  be  defeated,  and  the  subsequent  interest  to  arise,  on  g^^  c  ^rjQ^ 
such  contingency,  by  way  of  conditional  limitation.     Or,  it  -^^^^ 
may  appear  doubtful  to  him,  which  of  these  two  modes  is  ^^\  ^^ 
the  best.     ^o\v,  apart  from  any  other  gi'ounds  of  prefer-         1439 
ence  which  other  legal  consequences  may  suggest  for  the    ^° 
one  mode  rather  than  the  other,  it  may  be  observed, 

278  I.  That  if  he  is  desirous  of  annexing  a  detcrmi-  I-  ^^  "cre  the 
nablc  quality  to  the  prior  interest,  for  the  sake  of  P^'or '"Jerest 

determining  such  prior  interest  on  the  contingency  specified,  ^"|^".'^  'j^^^" 
irrespectively  of  the  design  of  creating  another  interest  in  its  j!!"^'"^^^  ^^  ^ 
room,  and  he  is  desirous  that  such  prior  interest  should  cease  g^^^j^i  i;,^,;' 
on  that  contingency,  whether  the  subsequent  interest  should  y^^.^^^  ^^^ 
be  capable  of  taking  ellect  or  not ;  then,  the  contingency  ^j^^  g^^i^g^, 
should  be  made  the  subject  of  a  special  or  collateral  limita-  ^^^^^  i,^tej.- 

(rt)  Sec  Fearne  10,  note  {h). 

(0)  Fearne,  2G3.  And  Colthirst  v,  BejusUn^  Plowd.  23 ;  as  stated,  Fearne,  263. 


[135]        ir.  7.  ii.]  AN  ORIGINAL  VIEW  [§279,280. 

est  be  limit-  t'O'^  to  the  prior  interest,  and  the  subsequent  interest  should 
cd  bv  way  of  be  limited  to  arise  on  such  contingency,  as  a  condition  pre- 
remaindcr.  cedent,  by  way  of  contingent  remainder,  in  case  the  prior 
See  §  34-42.  interest  does  not  carry  the  fee,  or  of  a  springing  executory 
See  6  13  43  interest  of  the  seventh  kind,  in  case  the  prior  interest  does 

See  §  159.  *  ^^^"''y  ^^'^  ^^^' 
See  §  117,  12G,  IGo. 

II.  Where  II.  But  if  lie  is  desirous  of  annexing  a  deter-  279 

the  prior  in-  rninable  quality  to  the  prior  interest,  for  the  sake 
terest  should  of  creating  another  interest  in  its  room  on  the  contingency 
be  determi-  specified,  and  he  would  not  wish  the  prior  interest  to  cease, 
nablc,  and  a  jf  ^1,3  subsequent  interest  intended  to  be  created  in  its  room 
subsequent  sijonij  jjg  incapable  of  taking  effect ;  then,  he  should  make 
interest  be  li-  ^^^^^  contingency  the  subiect  of  a  mixed  condition,  and 
,  ^',^1  cause  the  prior  interest  to  be  defeated,  and  the  subsequent 
f  '  interest  to  arise,  on  such  contingency,  by  way  of  conditional 
i^.ed^co'lidi- 'i"iif;^tion.     (See  §  14,  148-9)  ,^      ,     ,, 

tiQ,-,  These  suggestions  may  be  illustrated  by  the  lol-  280 

jll   '      .        lowing  examples  :  If  an  estate  be  devised  to  Jl. 

'  and  the  heirs  of  his  body,  till  he  becomes  possessed  of  a 
certain  other  estate  ;  and  on  his  becoming  possessed  of  such 
estate,  then,  to  C  for  life  ;  there,  \{  Ji.  becomes  possessed  of 
the  other  estate,  the  first  estate  will  cease  by  force  of  the  di- 
rect special  limitation  formed  by  the  words  "  till  he  be- 
come" &c.,  even  though  C.  be  dead,  in  whose  favour  alone 
the  property  was  to  go  over,  by  virtue  of  the  contingent  re- 
mainder to  him.  Whereas,  if  an  estate  be  devised  to  A.  and 
the  heirs  of  his  body  ;  but,  if  he  become  possessed  of  a  cer- 
tain other  estate,  then  to  C.  for  life ;  there,  notwithstanding 
it  should  happen  that  A.  had  become  possessed  of  the  other 
estate,  still,  the  first  estate  would  not  cease,  by  force  of  the 
mixed  condition  formed  by  the  words  "but  if  he  become" 
&c.  unless  C  were  alive,  in  whose  favour  alone  it  was  to  go 
by  virtue  of  the  conditional  limitation.  For,  in  this  case, 
there  is  nothing  to  cause  it  to  cease,  as  to  Ji.,  but  that  which 
was  to  cause  it  to  go  over  ;  and  as  there  was  no  one  to  whom 
it  could  go  over  according  to  the  terms  of  the  devise,  it  could 
not  cease  as  to  A. 


II.  8.  i.]       OF  EXECUTORY  INTERESTS.  [§281.        [  136  ] 


CHAPTER  THE  EIGHTH. 

CERTAIN  CASES  OF  ABSOLUTE  AND  DEFEASIBLE  VESTED 
INTERESTS,  DISTINGUISHED  FROiM  SPRINGING  INTERESTS, 
AND  FROM  THE  SECOND,  THIRD,  AND  FOURTH  CLASSES 
OF    CONTINGENT    REMAINDERS. 


SECTION  THE  FIRST. 

Cases  where  an  Uncertain  Event  is  made  a  part  of  the 
Description  of  the  Devisee  or  Legatee. 

281  I.  Where  real  or  personal  estate  is  devised  or  1.  Where  an 

becjiicatlied  to  such  of  the  ciiildreu,  or  to  such  child  uncertain 
or  individual  as  shall  attain  a  given  age,  or  the  children,  &c.  event  forms 
who  shall  sustain  a  certain  character,  or  do  a  particular  act,  pnrtof  the 
or  "be  living  at  a  particular  time,(«)   without  any  distinct  original  de- 
gift  to  the  whole  class,  immediately  preceding  such  restric-  scripticn. 
tive  description;  so  that  the  uncertain  event  forms  part  of  See  §  282- 
the  original  description  of  the  devisee  or  legatee ;  in  such  309. 
case,  the  interest  so  devised  or  bequeathed,  is  necessarily 
contingent,  on  account  of  the  person.     For,  until  the  age  is 
attained,  the  character  sustained,  or  the  act  performed,  the 
person  is  unascertained ;  there  is  no  person  in  reruni  natura, 
answering  the  description  of  tiie  person  who  is  to  take  as 
devisee  or  legatee. 

A  testator  devised  his  estates  at  S.  and  //  to  trustees,  in  jy^fnj,!  v. 
trust,  in  case  there  sjiould  he  but  one  son  of  his  daughter  Ifi/ffiehl,  1 
who  should  attain  the  age  of  21  years,  for  such  son,  his  heirs  Dow  & 
and  assigns  for  ever  ;  and  in  case  there  should  be  two  or  Clark,  268. 
more  sons  who  should  attain  the  age  of  21,  then,  in  trust 
for  the  second  of  such  sons,  his  heirs  and  assigns  for  ever  ;        [   137  ] 
and  in  case  there  should  be  no  son  who  should  attain  the 
age  of  21  years,  then,  in  trust  for  such  of  the  daughters  (if 
any)  as  should  attain  that  age,  or,  before  that,  be  married 
with  consent  of  the  trustees,  her  heirs  and  assigns  for  ever. 
And,  after  directing  his  trustees  to  convert  the  residue  of  his 
real   and   personal   property   into   money,  and   invest  the 
produce  in  the  funds;  the  testator  directed  his  trustees,  by 
and  out  of  the  rents,  issues,  and  profits  of  the  said  estates, 
and  by  and  out  of  the  part  or  share  of  and  in  the  said  stocks, 

(a)  Reei'cs  v.  Bri/mer,  4  Ves.  692 ;  as  stated,  1  Rop.  Lojt.  509,  ed.  I)y 
While.  Sec  also  Bennett  v.  Siymour,  Ambl.  521  ;  as  stated,  1  Kop.  Leg.  509. 
And  Sec  Dcnn.  d.  Radclyfc  v.  Bagshaw,  G,  Diun.  kk  East,  512  ;  as  stated, 
Fearne,  246,  note  (/j)  ;  and  §  350. 


[  137  ]        II.  S.  i.]  AN  ORIGINAL  VIEW  [§2S1. 

funds,  and  securities,  and  the  dividends,  interest,  and  annual 
proceeds  thereof,  to  which  any  child  or  children  of  his 
daughter  should  be  presumptively  entitled,  pay  and  apply, 
for  the  maintenance  and  education  of  any  such  child  or 
children,  in  the  meantime,  and  until  his,  her,  or  their  share 
or  portion,  shares  or  portions,  should  become  payable,  such 
yearly  sum  and  sums  as  to  the  trustees  should  seem  meet. 
And,  by  a  codicil,  revoking  that  part  of  his  will  which  di- 
rected the  sale  of  his  residuary  freehold  property,  the  testa- 
tor directed,  that  the  son  of  his  daughter  who  should  first 
attain  the  age  of  21  years,  should,  on  attaining  such  age, 
change  his  name  for  that  of  Elwes  ;  and  he  devised  to  sucli 
son,  on  his  attaining  the  age  of  21  years,  and  changing  his 
name  to  Elwes,  all  his  freehold  property  &c.  [meaning  tliat 
directed  by  the  will  to  be  sold,  and  what  he  had  subse- 
quently acquired,]  and  his  heirs  and  assigns  for  ever.  The 
testator's  daughter  had  one  son  and  four  daughters,  infants, 
at  the  time  of  the  testator's  decease  ;  and  afterwards  a  second 
son  was  born.  The  decree  of  the  Vice-Chancellor  declared, 
that,  under  and  by  virtue  of  the  will,  G.  T.  W.  H.  DuJJield, 
as  the  only  son  of  the  testator's  daughter  at  the  time  of  the 
testator's  death,  took,  upon  the  testator's  death,  a  presently 
vested  equitable  estate  in  fee,  in  the  estates  at  S.  and  //., 
subject  to  be  devested  by  his  death  under  age,  or  by  the 
birth  of  a  second  son ;  and  that,  upon  the  birth  of  Henry 
JJuffield,  the  second  son,  the  said  equitable  estate  of  the  said 
G.  T.  W.  H.  Duffield,  was  devested,  and  the  said  Henry 
IJvJfield  took  a  vested  equitable  estate  in  fee  in  the  said  es- 
tates, subject  to  be  devested  in  the  event  of  his  dying,  or  be- 
coming neither  the  second  nor  only  son,  before  he  attained 
[  138  j  the  age  of  21  years;  and  that,  under  and  by  virtue  of  the 
codicil,  the  said  G.  T.  W.  H  Duffield,  upon  the  testator's 
death,  took  a  presently  vested  legal  estate  in  fee  in  all  the 
testator's  freehold  property  (except  the  said  estates  at  S.  and 
//.)  subject  to  be  devested,  in  case  of  his  death  under  age  ; 
but  without  prejudice  to  the  question,  how  far  such  estate 
might  be  afiected  by  his  not  changing  his  name  on  attaining 
his  majority.  The  case  was  carried  by  appeal  from  the 
Vice-Chancellor  to  the  House  of  Lords,  in  the  first  instance  ; 
and  it  was  there  decided,  in  consonance  with  the  unanimous 
opinion  of  all  the  Judges,  1.  That  the  estates  at  .S'.  and  //. 
vested  in  a  second  or  only  son,  on  his  attaining  21,  and  not 
before  ;  or,  in  case  of  failure  of  such  issue,  in  a  daughter  or 
daughters,  on  her  or  their  respectively  attaining  that  age, 
or  marrying  with  consent  of  the  trustees,  and  not  before. 
2.  That  the  testator's  other  freehold  estate  vested  in  the  son 
who  should  first  attain  21,  on  his  attaining  that  age,  and  not 
before.  3.  That  until  these  estates  vested,  the  rents  and 
profits  derived  from  them  passed  to  tlie  testator's  heir  at  law, 


II.  8.  i.l       OF  EXECUTORY  INTERESTS.  [§281.        [   138  ] 

the  rcsiduo  of  the  testator's  estate  not  being  devised  to  any 
particular  person.     4.  That,  as  to  maintenance,  there  being 
two  sons  infants,  the  trustees  sliould  execute  the  power,  by 
applying  part  of  the  rents  and  profits  of  the  premises  first 
devised,  for  the  maintenance  of  the  second  of  such  sons, 
during  his  infancy,  and  in  case  such  second  son  should  die  an 
infant,  the  elder  son  being  an  infant  and  an  only  son,  the 
trustees  might  apply  part  of  the  rents  and  profits  for  such 
only  son's  maintenance,  during  his  infancy,  and  whilst  he 
continued  an  only  son  ;  and  that,  in  case,  after  the  death  of 
such  second  son  in  his  infancy,  the  testator's  daughter  should 
have  a  third  son  born  during  the  infancy  of  the  first,  the 
power  of  the  trustees  to  apply  any  part  of  the  rents  and 
profits  to  the  maintenance  of  the  first  son,  would  cease,  and 
they  should  apply  part  of  the  rents  and  profits  for  the  main- 
tenance of  such  third  son  ;  and  that,  supposing  there  was  an 
only  son,  and  a  daughter  of  the  testator's  daughter,  unmar- 
ried, and  an  infant,  the  trustees  would  not  have  the  power 
of  applying  any  part  of  the  rents  and  profits  for  the  main- 
tenance of  such  daughter  during  her  minority.     Lord  Chief 
Justice  Best,  who  delivered  the  answers  of  the  Judges,  ob- 
served, that  it  was  impossible  to  say  that  the  words  of  that        [  139  ] 
will  did  not  import  conditions  precedent ;  that  the  estates  See  §  13, 
were  not  given  to  any  particular  children  by  name,  but  to 
such  children  as  should  attain  the  age  of  21  years  ;  and  until 
they  had  attained  that  age,  no  one  completely  answered  the 
description  which  the  testator  had  given  of  those  who  were 
to  be  devisees  under  his  will;  and,  therefore,  there  was  no 
j)erson  on  whom  the  estates  could  vest.     (1  Dow  &  Clark, 
314.)     It  had  been  argued  from  the  words  "presumptively 
entitled,"  that  the  persons  so  entitled  took  a  vested  interest. 
{lb.  304.)     But  his  Lordship,  as  well  as  Lord  Eldon,  said, 
that  those  words  showed  that  tliey  did  not  take  a  vested  in- 
terest; for,  as  the  former  remarked,  a  presumptive  title  was 
only  a  possibility ;  a  presumptive  heir,  one  who  will  be  the 
heir,  if  no  one  having  a  preferable  claim  be  in  existence  at 
the  time  of  the  death  of  the  person  to  whom  the  presump- 
tive heir  stands  in  that  relation.     {lb.  315.)     With  regard 
to  any  general  motives  that  might  induce  a  leaning  towards 
one  construction  rather  than  another,  the  Lord  Chief  Justice 
observed,  that  the  Judges  were  always  inclined  to  decide 
that  estates  were  vested,  because,  among  other  reasons,  "the 
rights  of  the  dilTerent  members  of  families  not  being  ascer- 
tained whilst  estates  remain  contingent,  such  families  con- 
tinue in  an  unsettled  state,  which  is  often  productive  of  in- 
convenience, and  sometimes  of  injury  to  them."     {lb.  311.) 
But  "  the   state  of  the  adairs  of  this  family,"  he  added, 
"  will  not  be  sooner  settled  by  the  artificial  contrivance  of 
veslin:;  and  devesting  the  estates,  than  by  keeping  themcon- 
VoL.  II.— 15 


[  139  ]        II.  S.  i.]  AN  ORIGINAL  VIEW  [§282. 

tingent  until  a  final  vesting  of  them  can  take  place,  agreea- 
bly to  the  disposition  made  by  the  testator.  How  can  it  be 
said  that  the  ailairs  of  a  family  are  settled  by  vesting  an 
estate  in  an  eldest  son,  and  devesting  when  a  second  is  born  ; 
then  vesting  it  in  the  second,  and  devesting  it  on  the  birth 
of  a  third  son  and  death  of  the  eldest ;  and  by  again  vesting 
it  in  a  daughter,  when  there  are  no  sons,  and  devesting  it 
again  on  the  birth  of  a  son?"  {lb.  312.)  His  Lordship 
cited  the  case  of  Stephens  v.  Stephens,  as  precisely  in  point. 
Tucker  v.  And  so  where  a  tcstater  gave  5000/.  to  trustees,  in  trust  for 

Harris,  5  his  daughter  E.,  for  life,  for  her  separate  use  ;  and  after  her 
Sim.  538.  death,  in  trust  to  apply  the  interest  for  the  maintenance  of 
[  1-10  ]  all  her  children  as  should  be  living  at  her  death,  during  their 
minorities;  and, on  their  attaining  21,  in  trust  to  transfer  the 
same  equally  between  them.  Bni  if  E.  should  die  without 
leaving  any  such  child  ;  or  leaving  such,  if  such  child,  or  all 
such  children,  should  happen  to  depart  this  life  before  at- 
taining 21  ;  then,  to  transfer  the  same  unto  such  children  of 
his  son  7^.,orofhis  daughters  ^S*.  and  M,  as  should  be  living 
at  the  death  of  E.  without  issue,  or  of  the  last  of  such  issue 
under  21.  One  of  the  daughters  of  E.  attained  21,  but  died 
in  ^.'s  lifetime.  Sir  L.  Shadwell,  V.  C,  held,  that  the  de- 
ceased daughter  of  E.  took  no  interest.  It  was  argued  for 
her  administrator,  that  as  no  person  was  to  take  under  the 
gift  over,  unless  they  were  living  at  the  death  of  E.  without 
issue,  there  was  no  gift  over  except  on  a  general  failure  of 
issue  of  E.;  and  that  the  case  was  within  the  principle  of 
Perfect  v.  Lord  Curzon.  But  the  Vice-Chancellor  ob- 
served, that  a  gift  by  will  differs  from  the  case  of  a  trust 
declared  by  a  settlement ;  because,  in  the  former,  there  is 
no  supposition  that  any  persons  can  be  intended  to  take  ex- 
cept those  who  are  described  as  takers.  That  the  words 
"without  issue"  referred  to  the  event  before  described  in 
the  gift  over,  namely,  that  of  the  daughter  dying  without 
leaving  any  such  child  ;  and  that  the  words  "  or  of  the  last 
of  such  issue  under  21,"  referred  to  the  other  event  de- 
scribed in  the  gift  over  by  the  words  "  or  leaving  such,  if 
such  child,  or  all  such  children,  should  happen  to  depart 
this  life  before  attaining  21."  And  that  this  was  manifest 
from  a  gift  of  another  sum,  where  the  testator,  in  using  the 
word  "  issue,"  clearly  referred  to  the  children  of  E.,  and  not 
to  issue  generally. 
Il.Whcrean      II.  But ''where  a  testator  devises  or  bequeaths  282 

uncertain  real  or  personal  estate  to  a  class  of  persons,  "  or 
event  forms  such  of  them  as  shall  be  living"  &c.,  "  or  the  survivors,"  so 
an  independ-  that  the  circumstance  of  being  alive  at  a  particular  time, 
ent  super-  forms  an  independent,  superadded,  restrictive  description, 
added  de-  (instead  of  forming  part  of  one  and  the  same  original  de- 
scription,      scription,  and  therefore  of  necessity  rendering  the  interests 


II.  8.  ii.]    OF  EXECUTORY  INTERESTS.  [§283— 2S5.        [  HO  ] 

contingent,  as  in  cases  falling  under  the  last  rule,  where  a 
devise  or  bequest  is  made  to  such  of  a  class  of  jiersons  as 
shall  be  living  &c.;)  in  such  case,  if  at  least  there  is  no  limi- 
tation over  in  the  event  of  none  of  them  surviving,  the  whole  [  141  ] 
class  will  take  vested  interests,  notwithstanding  the  super- 
added description,  where  they  would  take  vested  interests  in 
the  absence  of  such  superadded  description,  and 

283  where  they  are  all  alive  at  the  death  of  the  testa- 
tor.    And  if  the  survivorship  refers  to  tlie  death  See  §  97-8, 

of  the  testator,  they  will  take  absolute  vested  interests,  the  284. 
superadded  description  being  construed  to  be  an 

284  alternative  limitation  of  an  irregular  form.     But  if  Sec  §  128, 
the  survivorship  refers  to  a  subsequent  period,  they  134-5. 

will  take  vested  interests,  subject  only  to  be  devested  in  fa- 
vour of  the  survivors,  in  case  of  the  death  of  some  one  or 
more  of  them,  before  the  period  to  whicli  the  survivorship 
refers,  the  superadded  description  being  then  construed  to 
be  an  irregularly  formed  conditional  limitation.  So  that,  in  See  §  148-9. 
the  last  case,  if  all  of  them  survive  that  period,  the  interests 
of  all  of  them  will  be  changed  from  defeasible  into  absolute 
vested  interests;  and  if  all  of  them  die  before  that  period, 
their  interests  will  also  become  vested  absolutely,  and  be 
transmitted  to  their  representatives.(A) 

SECTION  THE  SECOND.  [  142  ] 

Cases  where  the  Devhe  or  Bequest  has  reference  to  a  future 
Age  or  an  Uncertain  Event  ivhich  does  'no'v  form  jxiri 
of  the  Description  of  the  Devisee  or  Legatee,  and  there 
is  NO  Indication  of  Vesting. 

285  I.  Where  real  or  personal  estate  is  devised  or  I.  Where  the 
bequeathed  to  a  person,  when  or  as  soon  as  he  shall  conditional 

attain  a  given  age,  or  when  an  event  shall  happen  which  words  are, 

(b)  See  Browne  v.  Lord  Kent/on,  3  Mad.  410;  and  Sturgess  v,  Pearson,  4 
Mad.  413  ;  stated  infra;  and  Belk  v.  Slack,  1  Keen,  238.  But  see  BiUingnh'i/ 
V.  Wills,  3  Atk.  219;  and  Smith  v.  Vaiighan,  I  Vin.  Ab.  tit.  "Devise,"  381, 
pi.  32  ;  as  stated,  1  Rop.  Leg.  507,  511.  As  to  the  time  to  which  survivorship 
refers.  Sir  John  Leach,  V.  C,  in  Cripps  v.  Wolcolt,  4  Mad.  15,  said  "  that  if  a 
legacy  is  given  to  two  or  more  equally  to  be  divided  between  them,  or  [or,  and] 
to  the  survivors  or  survivor  of  them,  and  tiiere  be  no  special  intent  to  be  found 
in  the  will ;  the  survivorship  is  to  be  referred  to  the  period  of  division."  This 
rule  is  approved  of  by  Mr.  Jarman,  as  regards  both  real  and  personal  estate, 
though,  as  he  shows,  it  is  opposed  to  many  authorities.  See  his  review  of  the 
cases,  2  Jarm.  Powell  on  Dev.  730,  &c.  See  also  2  Rop.  Leg.  by  White,  334 
— 355  ;  and  Doe  d.  Long  v.  Prigg,  8  B.  &  C.  231,  where  a  testator  devised  to 
»^.  for  life,  and  after  her  decease  to  the  surviving  children  of  W.  J.  and  J.  W., 
and  their  heirs,  and  it  was  held  that  the  word  "  surviving"  referred  to  the  death 
of  the  testator. 


[   142    1        II.  8.  ii.j  AN  ORIGINAL  VIEW       [§286— 289a. 

when,assoon  may  never  occur  at  all,  or  ''al,(rt)  or  "^  upon, (6)  or  from  and 
as,  at,  upon,  alter  his  attaining  such  age, or  the  happening  of  snch  event; 
from  and        and  there  are  no  other  words  indicative  of  an  intent  to  con- 
after,  fer  a  vested  interest;  and  nothing,  in  the  form  of  the  hmita- 
See  §  290-     tion  itself,  to  indicate  an  intent  hierely  to  delay  the  vesting 
309.  ill  possession  or  enjoyment,  and  no  disposition  of  the  inter- 
mediate income  ;  in  such  case,  the  interest  of  the  devisee  or 
legatee  will  be  contingent  until  he  attains  the  age 
specified,  or  the  event  described  has  happened.  286 
For,  although  in  this  case  the  person  is  ascertain- 
See  §  281.     ed,  yet  the  property  is  only  given  to  him  at  a  futiu'e  period 
which  may  never  arrive ;  and  the  gift  can  no  more  attach 
upon  him  before  that  period,  than  it  could  if  the  testator, 
continuing  to  live,  were  to  defer  making  any  devise  or  be- 
quest till  such  period  had  actually  arrived. 

We  find  this  doctrine  in  the  Civil  Law  :  Si  dies  287 

The  doctrine  adposita  legato  non  est,  praesens  debetur  aut  con- 
of  the  Civil    festim  ad  eum  pertinet,  cui  datum  est;  adjecta,  quamvis 
Law.  longa  sit,  si  certa  est,  veliui  calendia  Januariis  centesimis, 

dies  quidem  legati  statim  cedit :  scd  ante  diem  peti  non 
potest.  At  si  incerta,  (quasi  cum  puhes  erit,  cum  infami- 
liani  nupserit,  cum  tnagi.sfratum  inierit,  cum  illiquid  de- 
mum,  fecerit)  nisi  tempuSjConditiove  obtigit,  neque  res  perti- 
nere,  neque  dies  legati  cedere  potest.  D.  36.  2.  21. 
[  143  ]  Dies  incertus  conditionem  in  testamento  facit.  288 

D.  35.  1.  75. 

Dies  incertus  appellatur  conditio.     D.  30.  1.  30,  289 

§4. 
Nash  V.  And  it  is  supported  by  various  decisions.     Thus,         289a 

Smith,  17  where  a  testator,  after  empowering  his  trustees  to 
Ves.  29,  sell  part  of  his  real  estate,  if  they  should  think  fit,  for  pay- 
ment of  debts,  legacies,  and  charges,  directed  them  to  invest 
the  proceeds  in  trust  to  pay  the  interest  to  his  son  T.  N., 
until  he  should  attain  the  age  of  30  years;  and,  in  case  of 
his  decease  before  that  age,  in  trust  for  his  children,  and 
from  and  after  his  son  should  have  attained  30,  he  directed 
his  trustees  to  convey  and  assign  all  such  parts  of  his  estate, 
not  applicable  for  other  the  purposes  of  his  will,  to  his  son  T. 
K,  his  heirs,  &c.;  it  being  his  intention  that  his  son  should 
have  no  power  over  any  part  of  his  real  or  personal  estate, 
except  as  aforesaid,  until  he  should  attai)i  the  age  of  30.  Sir 
W.  Grant,  M.  R.  held,  that  as  there  was  no  mention  of  the 
beneficial  interest  in  the  real  estate,  previous  to  the  disposi- 
tion of  it  from  and  after  T.  N.  should  have  attained  the  age 

(a)  Onslow  v.  South,  1  Eq.  Ca.  Ab.  295,  pi.  6  ;  and  Cruse  v.  Barley,  S  P. 
W.  20  ;  as  stated,  1  Rop.  Leg.  489. 

(b)  Judd  V.  Judd,  3  Sim.  525 ;  and  Hunter  v.  Judd,  4  Sim.  455 ;  as  stated, 
§  362. 


II.8.  ii.]    OF  EXECUTORY  INTERESTS.  [§290—292.        [  143  ] 

of  30  years;  and  as  T.  N.  never  attained  30;  he  never  took 
the  real  estate  under  tlie  will,  hut  as  the  iieir  at  law,  not- 
withstanding the  declaration  that  he  should  have  no  power 
over  any  part  of  the  real  or  personal  estate. 

Again,  a  testator  bequeathed  a  sum  of  stock  to  his  trus-  Gordon  v. 
tees,  upon  trust  to  stand  possessed  thereof  for  D.  G.,  until  Rutherford, 
he  should  attain  25.     lie  then  directed  them  to  transfer  the  Turn.  &  R. 
same  to  D.  G.  when  and  so  soon  as  they  should  think  pro-  373. 
per;  and  in  case  D.  G.  should  die  without  issue  before  re- 
ceiving the  bequest,  the  same  was  ordered  to  sink  into  tiie 
residue.     Sir  Thomas  Plumer,  iSI.  R.,  observed,  tliat  there 
was  no  direct  gift  to  D.  G.  except  through  the  medium  of  a 
discretionary  transfer,  for  which  no  time  was  fixed ;  and 
that  if  he  should  die  without  issue  before  such  transfer,  the 
bequest  was  to  sink  into  the  residue  ;  and  that  therefore  the 
vesting  must  in  the  meantime  be  suspended  ;  and,  conse- 
quently, that  the  dividends  must  await  the  final  disposition 
of  the  capital. 

So  where  a  testator  bequeathed  to  his  wife  the  use  of  liis  Ford  v. 
furniture,  &c.,  which  he  desired  might  be  distributed  amongst  Rawlins,  1 
his  children  on  the  youngest  attaining  21,  at  her  and  his  ex-  Sim.  &  Stu. 
ecutor's  discretion ;  such  part  being  nevertheless  reserved  ^28. 
for  her  use  as  might  be  thought  convenient,  and,  at  her  death,        [  144  ] 
to  be  distributed  as  above  directed,  Sir  John  Leach,  V,  C, 
lield,  that  three  children  who  died  under  21,  did  not  take,  in- 
asmuch as  there  was  only  a  power  to  the  widow  and  execu- 
tors to  distribute  at  their  discretion  certain  specific  articles 
when  the  youngest  attained  21. 

And  where  a  testator  gave  to  ^9.,  as  soon  as  he  attained  Knight  v. 
21,  the  sum  of  3000/.  with  interest;  Sir  John  Leach,  V.  C,  Knight,  2 
held,  that  the  expressed  intention  must  prevail ;  and  that  Sim  &  Stu. 
there  was  no  gift  either  of  principal  or  interest  until  ^.  at-  490. 
tained  21. 

290  II.  But  a  distinction  would  seem  to  exist,between  H.  Where 
devises  of  real  estate  and  legacies,  where,  instead  die  condi- 

of  the  words  "when,"  "at,"  "upon,"  "from  and  after,"  the  tional  words 
words  " if,"  "in  case,"  "provided,"  are  used.    For,  aveil, incase, 

291  1.  '^  Where  a  legacy  is  bequeathed  to  a  person,  P''o^''aea, 

if,  or  in  case,  or  provided  he  shall  attain  a  given  l.Inthecase 
age,  &c.;  the  vesting  of  the  legacy  is  suspended,  just  in  the  °^  legacies, 
same   way  as  if  it  had  been  bequeathed  to  him,  when  he 

should  attain  a  given  age,  &c.,  or  at,  or  upon,  or 

292  from  and  after  his  attaining  such  age  &c.(c)    (1)  As  (l)  Payable 
regards  legacies  payable  out  of  real  estate,  it  is  out  of  real 

conceived  that  they  would  be  equally  contingent,  whether  estate, 
the  words  "if,"  "in  case,"  "provided,"  are  used,  or  the 
words  "when,"  &.C.,  for  the  reasons  giv^en  in  a  subsequent 

(c)  See  1  Rop.  Leg.  490  ;  and  Elton  v.  Elton,  3  Atk.  .'>04,as  there  stated. 


[  144  ]        II.  8.  ii.] 


AN  ORIGINAL  VIEW         [§293—298. 


See  §  324-6.  page,  in  relation  to  other  cases  where  they  are  held 
(2)  Payable   contingent.     (2)  And,  as  regards  legacies  payable  293 

out  of  per-  out  of  personal  estate,  the  subtle  distinctions  be- 
sonal  estate,  tween  conditions,  and  those  clauses  which  are  termed  in  a 
preceding  page  indirect  limitations,  in  the  original  sense,  and 
the  technical  distinctions  between  the  words  "if,"  and  "in 
case,"  and  "provided,"  were  unknown  to  the  Civil  Law,  by 
which  legacies  payable  out  of  personal  estate  are  governed; 
and  that  Law  therefore  treats  the  words  in  question  as  tan- 
tamount to  each  other,  if  not  as  entirely  synonymous  ex- 
pressions. 
The  doctrine      Si  Titio,  cum  is-  annorum  quatuordecim  esset  294 


[   145  ] 
of  the  Civil 
Law. 


2.  In  the 
case  of  real 
estate. 

(1)  Where 
the  word 
"  provided" 
follows  the 
devise,  and 
there  is  no 
limitation 
over. 

See§  12,13, 
15  19. 

(2)  Where 
the  word 
"  provided" 
follows  the 
devise,  and 
there  is  a  li- 
mitation 
over. 

See  §  7,  13, 
24-43. 

(3)  Where 
the  word  "if" 
or  the  words 
"  in  case," 


/actus  legatum  fuerit,  et  is  ante  quartum  decimum 

annum  decesscrit  verum  est  ad  hteredem  ejus  non  transire: 

quoniam  non  solum  diem  sed  et  conditionem  hoc  legatum  in 

se  continet,sieffectusesset  annorum  quatuordecim Nee 

interest  utrum  scribatur,  *SV  annorum  quatuordecim  /actus 
erit :  an  ita.  cum  priore  scriptuia  per  conditionem  tempus 
demonstratur,  scquenti  per  tempus  conditio:  ulrobique  tamen 
eadem  conditio  est.     I).  3G.  2.  22. 

Non  solum  ita  stipulari  possumus,  Cum  mori-  295 

eris :  sed  etiam.  Si  morieris.     Nam  sicuti  inter 
haec  nihil  interest,  Cum  veneris,  aut  Si  veneris :  ita  nee  ibi 
interest,  Si  morieris,  et,  Cutn  morieris.     D.  45.  1.  45.  §  3. 

2.  As  regards  real  estate, 

(1)  Where  a  devise  is  made  to  a  person,  pro-  296 
vided  he  lives  to  attain  a  given  age,  &c.,  so  that 
the  conditional  expressions  do  not  precede,  but  follow  the 
devise ;  and  there  is  no  limitation  over  in  the  event  of  his 
not  attaining  such  age,  this  is  a  condition  subsequent,  giving 
the  heir  of  the  testator  a  right  of  entry  in  case  of  the  event 
of  his  not  attaining  the  age  specified,  instead  of  being  a 
condition  precedent,  suspending  the  vesting  of  the  estate : 
for  the  word  "  provided"  is  one  of  the  three  technical 
words  which  propria  vigore  import  a  condition  subse- 
quent. 

(2)  But  if  there  is  a  limitation  over  in  the  event  297 
of  the  devisee  not  attaining  the  age  specified,  the 
words  "  provided"  &c.  are  a  condition,  in  the  widest  sense 
of  the  term,  of  that  kind  which  is  termed,  in  a  preceding 
page,  an  irregular  special  or  collateral  limitation,  the  effect 
of  which  is  to  put  a  termination  to  the  estate,  in  the  event 
of  the  devisee  not  attaining  the  age  specified,  instead  of 
being  a  condition  precedent,  suspending  the  vesting  of  the 
estate. 

(3)  And  where  real  estate  is  devised  to  a  person  29S 
"  if,"  or  "  in  case"  he  shall  attain  a  given  age,  &c., 
so  that  the  conditional  expressions  follow  the  devise,  and 
there  is  no  limitation  over  in  the  opposite  event ;  it  is  con- 


II.  8.  ii.]     OF  EXECUTORY  INTERESTS.  [§299,  300.        [  1-15  ] 

ceivcd  lluit  this  would  be  a  condition,  in  the  widest  sense  of  follow  the 
the  term,  of  that  sort  which  is  termed  in  a  preceding  page  devise. 
a  regular  special  or  collateral  limitation  of  the  indirect  kind,  See  §  7,  34, 
causing  the  cesser  of  the  estate,  in  the  event  of  the  devisee  3«,  42. 
not  attaining  the  age  specified,  instead  of  a  condition  prece-  See  §  13. 
dent  suspending  the  vesting  of  the  estate. 

299  It  is  certain  from  S'prhiffV.  Ciesar,  Edwards  v.        [   146  ] 
llanvnond,  and  Broinjield  v.  Crowder,  that  this  See  §  351. 

is  the  case  where  there  is  a  devise  over  in  the  opposite 
event.  And,  even  where  there  is  no  such  devise  over,  it  is 
conceived  that  the  same  construction  would  prevail.  For, 
if  these  words  are  capable  of  that  construction  where  there 
is  a  devise  over,  it  would  seem  equally  clear  that  they  are 
capable  of  the  same  construction  where  there  is  no  such 
devise  over.  And  if  they  are  capable  of  that  construction, 
it  would  seem  that  it  ought  to  be  adopted  ;  because  an  in- 
terest, shall,  if  possible,  be  considered  as  vested,  rather  than  '^^^  §  200-9. 
contingent. 

300  True  it  is,  that  the  word  "  if,"  and  the  words  "  in  Disiinction 
case,"  are  directly  conditional,  and  consequently  between  the 

might  at  first  sight  appear  even  more  directly  and  necessa-  import  of  the 
rily  to  import  a  condition  precedent,  than  the  words  "  when,"  words  "  if 
"  at,"  "  as  soon  as,"  "upon,"  "  from  and  after,"  which  only  ^""  'V'*   , 
imply  a  condition,  and  yet  often  denote  a  condition  prece-  ,     .'  ^ 

dent.     (See  §  285.)     But,  conditions,  we  must  remember,   ,  *^ '"^Pj*^ 
may  be  either  precedent  or  subsequent,  either  suspensive  or  j^  ^^gn  " 
destructive.    (See  §  12,  13.)    And  although  the  words  "if  u  j,s  soon 
and  "  in  case"  are  indeed  more  directly  and  necessarily  con-  ^g  »  u  ^j  » 
ditional ;  because  they  properly  import  contingency,  where-  a  upon," 
as  the  words  "  when,"  "  at,"  "  upon,"  "  as  soon  as,"  "  from  "  from  and 
and  after,"  abstractedly  regarded,  do  not  import  contingency  after." 
to  any  greater  degree  than  they  import  certainty ;  yet,  the 
words  "  if"  and  "  in  case"  are  not  so  directly  and  necessarily 
suspensive,  in  their  import   and   operation,  as  the  words 
"when,"  "at,"  "upon,"  "as  soon  as,"  from  and  after," 
which  are  necessarily  suspensive,  either  of  the  ownership,  See  §46, 50, 
or  of  the  possession  or  enjoyment. 

It  may  be  shown,  independently  of  tlie  leaning  towards 
vesting,  and  of  any  such  decisions  as  those  to  which  allusion 
has  just  been  made,  that  the  word  "  if,"  and  the  words  "  in  See  §  299. 
case,"  are,  in  their  own  nature,  capable  of  a  non-suspensive, 
and  yet  a  conditional  operation.  For,  a  devise  to  a  person 
if  or  in  case  he  shall  live  to  attain  a  given  age,  is  capable 
of  being  interpreted,  (as  it  was  in  fact  in  Edwards  v. 
Hairunond,  and  Bromficid  v.  Crowder,)  without  doing 
any  violence  to  language,  to  mean  an  immediate  devise 
to  him,  provided,  or  upon  the  supposition  or  condition, 
that  he  shall  thereafter  live  to  attain  the  required  age.  And  [  1-^7  ] 
the  same  construction  maybe  fairly  adopted,  where  the  sub- 


[  147  ]        II.  8.  iii.]  AN  ORIGINAL  VIEW  [§301—8. 

ject  matter  of  the  condition  is  the  sustaining  a  certain  char- 
acter, or  the   performance  of  a  particular  act;  though,  in 
these  cases,  such  a  construction  is  not  quite  so  easy  of  appU- 
cation,  as  in  the  former  case.     The  words  in  the  former  case 
amount  to  the  same  thing,  as  if  the  words  had  been,  if  he 
shall  continue  to  hve  till  he  shall  attain  such  an  age;  and 
these  words  are  as  obviously  non-suspensive  as  the  words  to 
Ji.,  and  the  heirs  of  his  body,  Lords  of  the  Manor  of  Dale, 
See  ^3,  24,  which  {A.  being  Lord  of  the  Manor  at  the  time)  of  course 
26   34  42. '  are  not  a  condition  precedent,  but  words  constituting  a  limi- 
tation, amounting,  in  eft'ect,  as  they  do,  to  the  same  as  a  de- 
See  §  41.       vise  to  A.  and  the  heirs  of  his  body,  so  long  as  they  shall 
continue  to  be  Lords  of  the  Manor  of  Dale. 

On  the  other  hand,  the  words  "when,"  "at,"  "upon," 
"as  soon  as,"  "from  and  after,"  are  not  capable  of  this  non- 
suspensive,  and  yet,  at  the  same  time,  conditional  operation. 
For  there  is  no  condition  except  that  denoted  by  the  period 
to  which  they  refer;  and  that  period  is  a  future  period;  and 
there  is  no  gift  except  at  that  future  period.  Of  course  these 
words  may  be  construed  to  mean  the  same  as  the  word  "if," 
or  the  words  "in  case."  But  such  a  construction  would 
not  be  a  fair  interpretation.  It  would  not  be  a  construction 
of  words  according  to  one  sense  which  they  will  naturally 
bear,  in  preference  to  another  sense  which  is  merely  their 
prima  facie  import,  as  in  the  case  of  the  above-mentioned 
construction  of  the  words  "if,"  "in  case:"  but  it  would 
amount  to  a  conjectural  translation  of  the  words  "  when," 
"at,"  "upon,"  "as  soon  as,"  "from  and  after,"  into  others 
of  a  different  meaning ;  unless  there  were  some  expressions, 
independent  of  these  words,  indicating  an  intention  to  con- 
fer a  vested  interest  on  the  devisee,  and  depriving  such 
words  of  their  proper  suspensive  sense. 

[  148  ]  SECTION  THE  THIRD. 

Cases  where  a  Devise  has  reference  to  a  Time  or  Event 
CERTAIN,  and  there  are  no  Indications  of,  or  Grounds 
for  supposing,  an  Immediate  Vesting. 

Where  real  estate  is  devised  to  a  person  at  a  301-8 
future  period,  and  yet  not  by  way  of  remainder,  it 
matters  not,  as  regards  the  vesting,  whether  that  period  is 
sure  to  arrive  or  not.  If  the  vesting  would  be  suspended, 
according  to  the  rule  in  the  preceding  section,  in  case  the 
event  were  contingent,  the  vesting  will  be  equally  suspend- 
ed, thougli  the  event  may  be  one  that  is  sure  to  arrive. 
The  only  difference  is,  that,  in  the  former  case,  the  interest 

See§75,7.5<i,  is  a  certain  executory  interest,  whereas,  in  the  latter  it  is  a 

84-6,  90-1.    contingent  executory  interest. 


11.  S.  iv.l    OF  EXECUTORY  INTERESTS.  [§309,  310.        [  148  ] 


SECTION  THE  FOURTH. 

Cases  where  a  Devise  or  Bequest  has  reference  to  a  future 
Age,  Time,  or  Event,  ^ot  forming  j/art  of  t lie  Original 
Description  of  the  Devisee  or  Legatee;  and  t/iere  are 
Indications  of  or  Grounds  for  supposing,  an  Immediate 
f^esting. 

GENERAL  PROPOSITION. 

309  Where  real  or  personal  estate  is  devised  or  be-  Se^  §  79-81. 
queatlied  to  a  person,  and   though  the  vesting  in 

right  or  interest  at  first  sight  appears  to  depend  upon  the 

attainment  of  a  given  age  or  upon  the  arrival  or  occurrence 

of  an  event  or  time  which  is  sure  to  happen  or  arrive,  or,  in  See  §  341-3. 

the  case  of  residuary  bequest  without  any  limitation  over, 

upon  marriage  ;  yet,  if  the  attainment  of  such  age,  or  the 

arrival  or  occurrence  of  such  event  or  time  does  not  form 

part  of  the  original  description  of  the  devisee  or  legatee,  and  ^ee  ^  281, 

the  suspensive  expressions  are  of  such  a  nature,  that  tliey  366. 

may  be  construed  to  refer,  not  to  the  vesting  in  right  or  Sec  §  344. 

interest,  but  to  the  vesting  in  possession  or  enjoyment ;  and 

it  appears,  from  the  form  of  the  limitation,  when  more  close-  See  §  310. 

ly  considered,  or  from  the  intermediate  disposition  of  the 

property,  or  from  other  passages,  to  be  probable,  that  it  was        [   149  ] 

only  intended  to  delay  the  vesting  in  possession  or  enjoy-  See  §  328-9, 

ment;  in  such  case,  the  suspensive  expressions  will  be  refer-  340,  340a, 

red  to  the  vesting  in  possession  or  enjoyment,  and  the  inte-  345. 

rest  of  the  devisee  or  legatee  will  be  actually  vested  in  right 

before  the  age  or  period  specified, 

SPECIFIC  RULES. 

Rule  I. 

JVherc  the  Time  is  not  annexed  to  the  Gift  itself 

310  If  the  testator  does  not  annex  the  time  to  the 
devise  or  bequest  itself,  but  merely  to  the  payment, 

possession,  or  enjoyment;  or,  in  other  words,  if  he  first  makes 

a  devise  or  bequest  unconnected  with  the  attainment  of  any 

particular  age,  or  the  arrival  of  a  future  period,  and  then, 

by  a  distinct  sentence  or  member  of  a  sentence,  directs,  that 

the  devisee  or  legatee  be  let  into  possession  or  enjoyment,  or 

be  paid,  as  soon  as,  or  ''when  he  shall  attain,  or  at,  a  given 

age,  or  when  some  future  period  shall  arriv^e,  which  must  See  §  342-3. 

arrive,(Z>)  or  on  his  attaining  or  from  and  after  such  age,  or 

the  arrival  of  such  period;  the  devise  or  bequest  confers  an 

(b)  1  Rop.  Leg.  485,  486, ed.  by  White;  and  Atkim  v.  Hiccocks,  1  Aik.  500, 
as  there  stated. 

Vol.  11.— 16 


[  149  ]        II.  S.  iv.]  AN   ORIGINAL  VIEW        [§311—313. 

interest  immediately  vested  in  right,  but  not  to  take  effect  in 
possession  till  the  age  or  period  specified  :  or,  as  the  phrase  is, 
with  respect  to  a  pecuniary  legacy,  it  is,  in  such  case,  debitum 
in  prvesenti,  solvendum  in  futuro.  And  this  is  the  case 
even  where  there  is  a  limitation  over  in  case  of  the  death  of 
the  devisee  or  legatee  before  the  given  age  or  period. 
l.Theappli-      i.  This  distinction,  as  to  the  effect  of  disannex-  311 

cation  ot  the  i,-)g  \\^q  future   period  from  the  gift  itself,  is  firm- 
distiuction  to  jy  established  as  regards  legacies  payable  out  of  personal 
legacies  pay-  estate. 

able  out  ot         cii  Antiently  legatory  matters  arising  on  personal         311a 
peisona  estate,  were  solely   under  the  jurisdiction  of  the 

,,  •  ,'  Ecclesiastical  Courts;  and  the  decisions  of  those  Courts  were 

governed  bv  regulated  by  the  Civil  Law :"  and  when  by  degrees  Courts 
r   150  1        of  Equity  took  cognizance  of  them  they  adopted  the  same 

the  Civil         ^^"Wc) .       u      ri 

Lj^^y^  The  distmction  m  question  appears  in  the   lol-  312 

Doctrine  of    lowing  passage  of  the  Civil  Law  : — 

the  Civil  Ex  his  verbis,  Do,  lego  .^liae   Severinae  filise,  mese,  et 

Law.  Secundae  decern  :  qua)  legata  accipere  debebit,  cum  ad  legiti- 

mum  statum  pervenerit :  non  conditio  fideicommisso,  vel 
legato  inserta,  sed  petitio  in  tempus  legitimae  setatis  dilata 
videtur,  Et  ideo,  si  ^lia  Severina  filia  testatoris,  cui  lega- 
tum  relictum  est,  die  legati  cedente,  vita  functa  est,  ad  hoere- 
dem  suum  actionem  transmisit ;  scilicet  ut  eo  tempore  so- 
lutio  fiat,  quo  Severina,  si  rebus  humanis  subtracta  non 
fuisset,  vigesimum  quintum  annum  a^tatis  implesset.  C.  6. 
•  53.  5. 

•^This  distinction  has   also  been  supported   by  313 

numerous  decisions  :(^/) 
Grant  v.  Thus  where  a  testatrix  bequeathed  her  residuary  estate 

Grant,  3  Y.  to  her  adopted  daughter,  and,  in  a  subsequent  passage,  she 
&  C.  171.  directed  the  daughter's  property  to  be  paid  on  the  day  she 
should  attain  25,  and  not  till  then  ;  unless  she  should  marry, 
her  whole  property  then  to  be  settled  upon  her  and  her  chil- 
dren. It  was  held  that  the  daughter,  having  attained  21, 
was  entitled  to  the  income  of  the  property. 
Blease  v.  And  so  where  a  testatrix  gave  her  residuary  estate  to 

Burgh,  2       trustees,  to  accumulate,  and  to  stand  possessed  thereof  and 
Beav,  221.    of  the  accumulations,  in  trust  for  all  the  children  of  J.  B.j 

(c)  Butler's  Note,  Fearne,  552  (g),  II. 

(d)  See  Cases  stated,  1  Rop.  Leg.  479 — 480  ;  namely,  Bolger  v.  MacTcell, 
5  Ves.  509,  where  the  period  was  the  attainment  of  21  ;  Jackson  v.  Jackson, 
1  Ves.  Sen.  217,  whore  it  was  at  another's  death;  Sidney  v.  Vaughan,  2  Bro. 
Pari.  Ca.  254,  whore  it  was  at  the  end  of  an  apprenticeship ;  Gaskell  v.  Har- 
man,  6  Ves.  159;  11  Ves.  489,  where  it  was  after  the  realization  of  the  assets; 
'Stuart  v.  Brvere,  0  Ves.  558,  in  note ;  and  Faulkener  v.  J  [oiling  sworth,  8  Ves. 
558,  where  it  was  after  a  sale  of  lands ;  Entwistle  v.  Markland,  6  Ves.  558,  in 
note ;  and  Sitwcll  v.  Barnard,  lb.  522,  where  it  was  after  a  purchase  of  lands. 


II.  S.  iv.]    OF  EXECUTORY  INTERESTS.  [§314,315.        [  150  ] 

other  (liati  T.  S.  B.,  and  to  be  j)aid  on  altaining  23;  with  a 
gift  over,  in  the  event  of  the  death  of  all  the  said  children 
under  23.  J.  li.  had  three  children;  two  born  in  the  life-  [  151  ] 
time  of  the  testatrix,  and  a  third  .//.  IF.  /?.,  who  was  born 
afterwards,  and  attained  23.  Lord  Langdale,  M.  R.,  after 
remarking  that  there  was  indeed  a  gift  over  in  the  event  of 
the  children  dying  nnder  23,  said  that  a  gift  in  terms  which 
import  a  present  vested  interest,  with  a  postponed  time  of 
payment,  is  not  made  contingent  by  a  direction  to  accnmu- 
late  till  the  time  of  payment  arrives;  and  that  there  being  a 
general  description  of  a  class,  and  vested  interests  given,  and 
another  child  born  before  the  period  of  distribution,  such 
other  child  must  be  let  in  to  claim  a  share  in  the  property. 
Three  observations  must  here  be  made: 

314  (1)  It  must   be  carefully   noticed,   that   where  Observations 
there  is  no  gift  but  in  a  'direction  to  pay  or  trans-  on  the  fore- 

fer(e)  or  ''divide   among    several    persons, (/)   at   a  future  ?5'!"^y'"i|^' 
period;  though  the  future  period  is  annexed  to  the  payment,  y]      ''     ^^' 
possession,  or  enjoyment,  yet  it  is  also  annexed  to  the  de-  '^"^"     , 
vise  or  bequest  itself.     For,  in  this  case,  the  direction  to  pay   ,        j^  ^^ 
or  transfer  or  divide,  constitutes  the  devise  or  bc(iuest  itself;    -^  ^^^  -^^  ^ 
and,  therefore,  the  vesting  in  interest  is  postponed,  and  not  direction  to 
merely  the  vesting  in  possession  or  enjoyment.  p^y^  &c. 

315  (2)  From  cases  where  the  future  period  is  an-  ..-,.  ^y  , 
nexed  simply  to  the  payment,  possession,  or  en-  p^/pn^g  to 

joyment,  we  must  be  careful  to  distinguish  those  m  wliich  ^^^^^  where 
there  is  both  a  gift,  and  also  a  distinct  direction  as  to  the  ,j^p  f^jf^^j.^, 
payment,  possession,  or  enjoyment,  and  the  future  period  period  is 
is  really,  though  perhaps  not  apparently,  annexed  not  only  annexed, 
to  the  direction  as  to  the  payment  or  possession,  but  also  to  both  to  the 
the  gift  itself,  and   consequently  the  vesting  in  interest  is  payment, 
postponed.  possession, 

or  enjoyment,  and  to  ihc  gift  itself. 

In  the  case  of  Kevern  v.  TVilliums,  the  future  period  was  Kevern  v. 
annexed  simply  to  the  payment  or  possession.    In  that  case,  Williams,  5 
a  testator   bequeathed   his  residuary  estate  to  trustees,  in  Sim.  171. 
trust  for  his  wife,  for  life,  with  power  to  sell ;  and,  after  her 
decease,  to  preserve  the  then  remaining  part  of  his  estate, 
or  the  produce  thereof,  to  and  for  the  use  and  benefit  of  the 
grandchildren  of  his  brother,  to  be  by  them  and  each  of  them        [   152  ] 
received,  in  equal   proportion   to  the   effects  in    hand  and 
remaining,  when  they  and  each  of  them  should  severally 
attain  25,  and  not  before.     Sir  L.  Shadwell,  V.  C,  held, 
that  the  payment  alone  was  postponed  till  they  should  at- 
tain 25. 


(e)  Leake  v.  Robinson,  §722;  Murray  v.  Tanrrcd,  10  Sim.  46.5. 

(f)  Sanshvry  v.  Ren<},  11  Vos.  "7^1. 


[  152  ]        II.  8.  iv.J  AN  ORIGINAL  VIEW  [§31«. 


Porter  y.  But,  where  a  testator  gave  annuities  to  liis  widow  and 

For,  6  Sim.  son,  and  directed  that  tlie  surplus  income  of  his  real  and 
4S5.  personal  estate  shoukl  be  invtisted  in  stock,  and  the  divi- 

dends accumulated,  and  to  be  and  remain  assets  for  improve- 
ment, for  the  benefit  of  such  surviving  child  or  children  as 
after-mentioned.  And  lie  directed  his  trustees,  after  the 
death  of  his  widow  and  son,  to  sell  his  real  estate,  and  in- 
vest the  produce  in  stock  as  aforesaid,  to  be  and  remain 
assets  for  improvement,  for  the  benefit  of  his  grandchildren 
and  his  nephew  7'.  0.,  and  to  be  distributed  in  manner  and 
form  following,  that  is  to  say,  as  they  should  become  of  the 
age  of  25  respectively.  It  was  argued,  that  there  was  first 
a  gift  of  the  property,  for  the  benefit  of  the  grandchildren 
and  T.  0. ;  and  then  the  time  for  distribution  followed,  in 
a  separate  sentence.  But  Sir  L.  Shad  well,  V.  C,  said  that 
the  distribution  was  part  of  the  gift. 
Dibtinctiuii  At  first  sight,  it  may  appear  impossible  to   distinguish 

between  this  case  satisfactorily  from  the  preceding ;  but  on  a  more 
Porter  v.  attentive  consideration,  it  will  be  observed,  that  the  words 
Fox,  and  « in  manner  and  form"  &c.,  are  capable  of  being  connected, 
Ke/vern  v.  )iot  only  with  the  words  immediately  preceding  them,  i.  e. 
Williains.  the  words  "and  to  be  distributed,"  but  also  with  the  other 
antecedent  words,  "to  be  and  remain  assets  for  improve- 
ment for  the  benefit  of  my  grandchildren  and  my  nephew 
T.  OP  If  the  words  of  distribution  had  not  been  connected 
with  the  previous  words,  by  the  word  "  and,"  the  subse- 
quent words,  "  in  manner  and  form"  &c.,  would  have  be- 
longed exclusively  to  the  next  preceding  words  "to  be 
distributed ;"  just  as  the  subsequent  words  in  Kevern  v. 
fVilliams,  denoting  the  time  of  payment,  belonged  exclu- 
sively to  the  next  preceding  words  "  to  be  by  them  and  each 
of  them  received."  Again;  the  surplus  income,  during  the 
lives  of  the  widow  and  son,  was  to  be  "for  the  benefit  of 
such  surviving  child  or  children  as  after-mentioned."  The 
[  153  ]  surviving  children  after-mentioned  were,  in  a  subsequent  pas- 
sage to  those  above  recited,  explained  to  be,  those  who  should 
live  to  attain  25.  Now,  as  the  surplus  income,  during  the 
lives  of  the  widow  and  son,  was  not  given  till  the  class,  or 
one  of  the  class  at  least,  should  attain  25  ;  so,  it  was  to  be 
supposed  that  the  produce  arising  from  the  sale  was  in- 
tended to  be  disposed  of  in  the  same  manner.  And  accord- 
ingly, we  find,  not  only  that  the  words  denoting  the  time 
of  distribution  are  connected  with  and  foini  part  of  the 
antecedent  gift,  as  already  shown,  but  that  the  testator  so 
disposed  of  such  produce,  in  subsequent  clauses,  as  to  ex- 
clude, from  a  participation  in  the  property,  every  member 
of  the  class  who  died  under  25,  except  the  last  survivor. — 
It  has  been  thought  the  more  requisite  to  endeavour  to  dis- 
tinguish this  case  from  that  of  Kevern  v.  Williams,  as  the 


II.  S.  iv.]  OF  EXECTTTORV  INTERESTS.  [§31G— f320.        [   ir,3  ] 

leaniL'd  Reporter  states  that  it  was  canicd  by  appeal  before 
Lord  Lyridburst,  C.,and  His  l^ordship  directed  a  case  to  be 
made  for  tbe  opinion  of  tbe  Conrt  of  Common  Pleas, 
thongli,  before  the  case  was  argued,  the  suit  was  com- 
promised. 

316  (3)  The  disiiuctioii  above-mentioned  as  to  the  (3)  With  re- 
disannexiug  the  time  from  the  gift,  ^has  been  held  fcrence  totlie 

by  some  equity  Judges,  altogether  withoiU   foundation,  and  character  of 
by  others  it  has  been  treated  as  too  refined. (^^)     And  it  is  the  disiinc- 
expressly  stated  by,  or  may  be  collected  from,  all,  or  almost  f'*^^"  5  wliicli 
all  the  authorities,  that  it  is  a  rule  exclusively  applicable  to  i^.  coinmonly 
legacies  payable  out  of  personal  estate.  disapproved 

317  But,  when  carefully  considered,  it  is  conceived,  '    '  .    . 

that  the  rule  will  be  seen  to  be  not  "  a  mere  posi-       ,?.^  *''     , 

tive  rule"  of  the  Civil  Law,  or  a  subtle  "refinement,"  but  ^^^    ^ 

-.    .       .        ^        1    1  •      1      •  •         /•  .1  .  •  eel  on  one 

a  distmction  lounded  m  the  mtention  ol  the  testator — m  one  ^^„^„„,^,^^,r 

among  several  kmds  of  mdications  oi  an  mtent  merely  to  indications  of 

postpone  the  actual  possession.  tj^g  testator's 

318  This  is  well  put  by  the  learned  Voet: — Dies  in-  intention, 
certus  conditionis  loco  habetur,  et  ad  hunc  diem  Quotation 

incertum  plane  reduci  debet  astas  certa,  qua  testator  legata-  from  Voet. 

rio  legatum  pra^stari  voluerit, nisi  dies  incertus  mo- 

randa  tantum  solutionis  gratia  adjectus  sit:  quippe  quo  casu 
statim  a  morte  testatoris  legati  dies  cedit,  ac  legatario  ante 

diem  moriente,  legati  expectatio  ad  ha3redes  transit 

Quando  autem  dies  talis  incertus  conditionem  faciat,  aut  e  [  154  ] 
contrario  tantum  moranda)  solutionis  gratia  adjectus  intelli- 
gatur,  voluntatis  quajstio  est;  et  si  quidem  ab  initio  dies  in- 
certus pubertatis  majorennitatis  &c.  adjiciatur  legato  uno 
verborum  complexu,  veluti  Title,  cum  ad  legitimam  getatem 
pervenerit,  centum  do  lego,  credendum  in  dubio  magis  est, 
diem  incertum  conditionis  vice  a  testatore  appositum  esse, 
ac  ob  id  impedire  legati  transmissionem ;  sin  diversis  ora- 
tionibus,  veluti  Titio  centum  lego,qua3  ei  pr;cstari  volo,cum 
ad  puberem  letatem  pervenerit,  diem  pubertatis  potius  mo- 
randse  solutionis  gratia  addidisse  testatorem,  quam  legato, 
quod  ab  initio  pure  datum  erat,  conditionem  inseruisse, 
prsesumendum  est. — Voet.  Com.  ad  Pand.  lib.  36,  tit.  2, 
sec.  2. 

319  2.  Regarding,  then,  the  distinction  as  founded  in  2.  Applica- 
the  intention  of  the  testator,  it  is  conceived  that  a  tion  of  the 
similardistinction  is  equally  applicable  to  real  estate,  distinction  to 

320  It  would  seem  that  there  can  be  no  doubt  what-  real  estate, 
ever,  that  if  real  estate  were  devised  to  a  person, 

with  a  direction  that  he  should  be  let  into  possession  of  it  at 
21  or  some  period  that  is  sure  to  arrive,  which  would  be  an 
analogous  case,  that  he  would  take  a  vested  interest.  In- 
deed, so  great  is  the  leaning  in  favour  of  vesting,  that   it  See  §  200-9. 

{g)  Sir  W.  Grant,  M.  R.  in  Hansom  v.  Graham,  6  Ves,  245. 


[   154   ]        II.  8.  iv.] 


AN  ORIGINAL  VIEW         [§321—324. 


Snow  V. 
Povlden,  1 
Keen,  186. 


3.  Non-ap- 
plication of 
[  155  ] 
the  distinc- 
tion to 
charges  on 
real  estate. 


The  non-ap- 
plication of 
the  distinc- 
tion to 
charges  on 
real  estate,  is 
no  reflection 
against  its 
soundness. 
Reasons  for 
the  non-ap- 
plication 
thereof; 
namely, 
(1)  Non-ex- 
istence of  the 
moneybefore 
the  future 
period. 


would  appear  (hat  words  far  less  strong,  would  have  the 
effect  of  vesting  the  interest. 

In  a  case  where  a  testator  directed  the  residue  of  his  pro- 
perty to  be  invested  in  land,  and  given  to  his  grandson,  who, 
by  a  subsequent  clause,  was  "  not  to  be  of  age  to  receive 
this"  until  he  attained  25,  and  to  be  entitled  to  him  and  his 
male  heirs ;  Lord  Langdale,  M.  R.,  held,  that  the  devise 
took  an  immediate  vested  interest,  subject  to  be  devested,  if 
he  should  not  attain  25;  and  that  the  rents  and  profits 
were  consequently  applicable  to  his  benefit  during  his  mi- 
nority. 

3.  But ''the  distinction  in  question  does  not  exist  321 

in  regard  to  charges  on  real  estate. (A) 

Mr.  Cox,  in  his  note  to    The  Duke  of  Chandos  322 

V.  Talbot,  2  P.  Wms.  612,  says,  that  "  with  re- 
spect to  all  interests  arising  out  of  land,  whether  the  land  be 
the  primary  or  auxiliary  fund,  whether  the  charge  be  made 
by  deed  or  will,  as  a  portion  or  general  legacy,  for  a  child 
or  a  stranger,  with  or  without  interest,  the  general  rule  is, 
that  charges  upon  land,  payable  at  a  future  day,  shall  not  be 
raised  where  the  party  dies  before  the  time  of  payment." 
And  in  support  of  this  proposition,  he  refers  to  a  multitude 
of  cases. 

The  refusal  to  apply  the  distinction  of  the  Civil  323 

Law  to  cases  not  directly  governed  by  it,  as  to 
charges  on  real  estate,  would  seem,  at  first  sight,  to  be  a  re- 
flection against  its  soundness,  when  applied  to  real  estate 
itself,  or  to  legacies  payable  out  of  personal  estate.  But  in 
reality  this  is  not  the  case.  Several  reasons  may  be  assign- 
ed for  refusing  to  adopt  the  rule  of  the  Civil  Law,  in  regard 
to  charges,  by  deed  or  will,  on  real  estate. 

(1)  Where  a  legacy  or  portion  charged  on  real  324 

estate,  is  to  be  paid  at  a  certain  age,  the  money 
given  is  not  in  existence  at  any  time  prior  to  the  period  ap- 
pointed for  its  payment :  the  arrival  of  such  period  is,  as  it 
were,  that  which  is  to  call  it  into  being  :  and  therefore,  there 
can  be  no  gift  except  at  the  time  for  payment ;  for,  that 
which  is  not  in  esse,  cannot  be  given  as  an  immediate  gift. 
And  hence,  athough  there  may  seem  to  be,  and  there  is,  in 
terms,  a  prior  immediate  gift  distinct  from  the  time  of  pay- 
ment, yet,  in  reality,  in  this  case,  there  is  no  gift  but  at  a 
future  time.     And  consequently,  the  principle  of  the  Civil 


{h)  Pawlett  V.  Pawletl,  1  Vern.  321,  affirmed  by  the  House  of  Lords  ;  Smith 
V.  Smith,  2  Vern.  92;  Yeates  v.  Phettiplace,  2  Vern.  416;  Prec.  Ch,  140; 
Jennings  v.  Looks,  2  P.  W.  276  ;  Duke  of  Chandos  v.  Talbot,  2  P.  VV.  602, 
612  ;  Prowse  v.  Abingdon,  Gawler  v.  Slanderwicke,  1  B.  C.  C.  106,  in  note; 
Harrison  v.  Naylor,  3  B.  C.  C.  108;  2  Cox,  247;  as  .stated,  1  Rop.  Leg.  553— 
559. 


II.  8.  iv.]  OF  EXECUTORY  INTERESTS.  [§325—328.        [  155  j 

Law  rule  has  no  application  whatever  to  legacies  or  portions 
payable  out  of  real  estate.     This,  it  is  submitted,  constitutes 
at  once  a  sutticient  reason  for  the  non-adoption  of  that  rule 
as  to  charges  of  this  kind.     But, 

325  (2)  The  charging  real  estate  with  legacies,  may  (2)  Favour 
amount  to  a  partial  disinherison  of  the  heir  at  law;  shown  to  the 

and  he  is  never  to  he  disinherited,  except  by  express  words  heir. 

or  necessary  implication.     And  hence,  as  between  the  heir 

and  the  representative  of  a  deceased  legatee,  the  mere  an-        [   156   ] 

nexing  of  the  future  period  to  the  time  of  payment  may  not 

be  regarded  as  a  sufficiently  clear  indication  of  intention, 

that  the  legacy  itself  should  not  be  contingent,  and  that  the 

heir  should  be  under  the  obligation  of  paying  it,  though  the 

legatee  should  not  attain  the  given  age. 

In   Tournay  v.    Tournay,  2  Ves.   Sen.  264,   the  Lord 
Chancellor  expressly  says,  that,  in  such  cases,  the  portion 
sinks  "  in  favour  of  the  heir,  and  for  the  benefit  of  his  inher- 
itance."    And  'the  same  reason  is  assigned  by  Butler.(e) 
It  is  right,  however,  to  add,  that, 

326  (3)  Lord  Hardwicke,  after  observing  that  the  (3)Thecom- 
Court  had  never  gone  upon  the  ground  that  the  men  law  is 

heir  was  a  favourite  with  a  Court  of  Equity,  or  that  the  adhered  to  in 
Court  would  go  as  far  as  it  can  in  keeping  an  estate  free  ^'^^  '^^^^  ^^ 
from  incumbrances,  said,  that  the  true  reason  was  this — "in  l^nds. 
the  case  of  lands,  the  rule  of  the  common  law  has  always 
been  adhered  to  :  as  suppose  a  person  should  covenant  to 
pay  money  to  another  at  a  future  day;  if  the  covenantee 
die  before  the  day  of  payment,  the  money  is  not  due  to  his 
representative."(yt) 

327  4.    ' "  It  sometimes  happens   that   legacies  are  4.  The  ap- 
charged  on  a  mixed  fund,  that  is,  both  on  real  and  iication  of 

personal  estate ;  in  that  case,  the  personal  estate  is  consider-  the  distinc- 
ed  to  be  the  primary  fund,  and  the  real  estate  to  be  the  aux-  tion  to  lega- 
iliary  fund,  for  the  payment  of  the  legacies.     So  far  as  the  cies  charged 
personal  estate  will  extend  to  pay  them,  the  case  is  governed  ^"  ^  mixed 
by  the  same  rules  as  if  the  legacies  were  payable  out  of'"""- 
personal  estate  only;  and  so  far  as  the  real  estate  must  be 
resorted  to  for  the  payment  of  the  legacies,  the  case  is  gov- 
erned by  the  same  rules  as  if  they  were  charged  on  real 
estate  only.     Duke  of  Chandos  v.    Talbot,  2  P.  W.  601 ; 
Proivse  V.  Mingdon,  1  Atk.  482."(/) 

Rule  IL  [  157  J 

JVhcrc  there  is  a  Gift  of  the  Whole  Intermediate  Income. 

32S  '"Where  the  testator  gives  the  whole  of  the  in-  See  §  367-9. 

termcdiate  income  of  real  estate,  or  of  personal 

(t)  Butler's  Notes,  Co.  Litt.  237  a,  (1);  and  Fearne,  552,  (g-),  II. 
{k)  1  Atk.  1S6,  as  quoted,  I  Rop.  Leg.  556. 
(I)  Butler's  note,  Feanie,  552,  {g),  \\\. 


[   157  J        II.  y.  iv.J 


AN  ORIGINAL  VIEW        [§329—331. 


See§  281. 
See  §  79-81 


Doctrine  of 
the  Civil 
Law. 


[    158  ] 
Bats  ford  v. 
Kebbell,  3 
Ves.  Jun. 
363. 
See  also 
Taylor  v. 
Bacon,  8 
Sim.  100. 


Edwards  v. 
Symons,  6 
Taunt.  213. 


estate  not  arising  from  a  charge  on  real  estate,  to  tlie  per- 
son to  whom  he  devises  or  bequeaths  such  estate,  on  the 
attainment  ot'  a  certain  age,  but  the  attainment  of  that  age 
does  not  form  part  of  the  original  description  of  the  devisee 
or  legatee  ;  the  interest  of  the  devisee  or  legatee  is  vested  in 
rightbefore  that  age,  even  though  there  is  no  prior  distinct 
gift — no  express  gift  except  at  that  age;(m)  it  being  consid- 
ered that  the  testator  merely  intended  to  keep  the  devisee  or 
legatee  out  of  the  possession  or  enjoyment  until  he  should 
have  become  better  qualified  to  manage,  and  more 
likely  to  take  due  care  of  the  property.     But,  as  we  329 

have  already  seen,  the  gift  of  interim  interest  will 
not  be  sudicient  to  vest  charges  on  real  estate. (n) 

This  gift  of  the  intermediate  income  would  seem  330 

to  have  been  considered  as  an  indication  of  vest- 
ing by  the  Civil  Law: 

Cum  ab  hasredibus  alumno  centum  dari  voluissct  testator, 
eamque  pecuniam  ad  alinm  transferri,  ut  in  annum  vicesi- 
mum  quintum  trientes  usuras  ejus  summa?  perciperct  alum- 
nus, ac  post  earn  getatem  sortem  ipsam:  intra  vicesimum- 
quintum  annum  eo  defuncto,  transmissum  ad  hseredem 
pueri  fideicommissum  respondi :  nam  certam  setatem  sorti 
solvenda3  pra)stitutam  videri,  non  pure  fideicommisso  relicto 
conditionem  insertam.     D.  36.  2.  26.  §  1. 

That  the  gift  of  the  interim  income  is  an  indica-  331 

tion  of  immediate  vesting,  is  also  established  by 
numerous  decisions. 

In  one  case,  indeed,  where  a  testator  gave  R.  E.  the 
dividends  on  500/.  stock,  until  he  should  arrive  at  32,  at 
which  time  she  directed  her  executors  to  transfer  the  princi- 
pal to  him;  Lord  Loughborough,  C,  held,  that  the  legacy 
did  not  vest  till  32,  His  Lordship  observing  tiiat  dividends 
are  always  a  distinct  subject  of  legacy,  and  capital  stock 
another  subject  of  legacy;  and  that  there  was  no  gift  but  in 
the  direction  for  payment,  which  only  attached  upon  a  per- 
son of  the  age  of  32. 

But  this  has  been  overruled  by  many  subsequent  de- 
cisions. 

A  testator  devised  an  estate  expectant  on  the  decease  of 
his  mother,  to  trustees,  to  receive  and  apply  the  rents  for  the 
maintenance,  education,  and  advancement  of  six  of  his  chil- 


(ot)  Goodtitle  d.  Hayward  v.  Whitby,  1  Burr.  228 ;  as  stated,  Fearne,  245. 
See  also  Fonereau  v.  Foncreaii,  3  Atk.  64.5;  Hoathv.  Hoath,2  B.  C.  C.  4 ; 
Walcott  V.  Hall,  2  B.  C.  C.  30.5  ;  and  2  Meriv.  380  ;  and  Dodson  v.  Hay,  3 
B.  C.  C.  404,  409  ;  as  slated  in  Roper  on  Legacies.  See  also  Murray  v.  Ad- 
denbrook,  4  Russ.  407  ;  stated  ^  654. 

(n)  Gawhr  v.  S lander wicke,  1  B.  C.  C.  106,  in  note;  as  stated,  1  Rop.  Leg. 
558, 


II.  8.  iv]      OF  EXECUTORY  INTERESTS.  |S3.n.        [   158  ] 

clreii,  whom  lie  named;  and  immedialelyon.fi?.  (the  young- 
est) attaining  21,  then,  he  devised  the  same  to  his  said  six 
children,  and  to  the  survivors  and  survivor  of  them,  their 
heirs  and  assigns,  as  tenants  in  common.  One  of  tlie  six 
children  died  in  the  testator's  lifetime,  and  T.,  another  of 
them,  died  before  E.  attained  21.  It  was  held  that  T.  had, 
at  the  lime  of  his  death,  a  fee  simple  estate  in  one  undivided 
fifth,  which  descended  to  his  heir  at  law. 

Again,  a  testator  gave  his  three  grandchildren  500/.  stock  Hanson  v. 
apiece,  when  they  should  respectively  attain  their  ages  of  Graham,  6 
21,  or  days  of  marriage,  provided  it  was  with  consent  of  his  Ves.  239. 
executors;  and  he  directed  that  the  interest  should  be  laid 
out  for  the  benefit  of  his  grandchildren  until  21  or  marriage. 
One  of  them  died  at  the  age  of  nine.  Sir  W.  Grant,  M.  R., 
held,  that  she  took  a  vested  legacy.  His  Honour  observed, 
that  the  word  "  when,"  as  referred  to  a  period  of  life, stand- 
ing by  itself  and  unqualified  by  any  words  or  circumstances, 
is  a  word  of  condition  ;  for,  it  is  just  the  same,  in  speaking 
of  an  uncertain  event,  whether  we  say  "  when"  or  "if"  it 
shall  happen,  [that  is,  the  word  "  when"  is  certainly  no  less  See  §  300. 
suspensive  than  the  word  "if"]  ;  and  that  such  is  the  doc- 
trine of  the  Civil  Law,  from  which  our  rules  as  to  pecuniary 
legacies  were  borrowed.  (6  \'es.  213.)  That  the  judgment 
m  May  v.  Wood,  which  implies  the  reverse,  as  reported, 
must  be  regarded  as  inaccurate.  That  the  only  cases  alluded 
to  in  that  case,  are  cases  of  real  estate,  where  it  was  evident 
that  only  the  payment  was  postponed  for  a  particular  pur- 
pose, namely,  in  order  that  the  devisee  might  not  have  the  [  159  ] 
possession  and  management  until  21,  as  in  Goodtitle  v. 
Whithy,  and  Doe  v.  Lea;  or  for  the  payment  of  debts,  as  in 
Boraston's  Case;  or  for  the  benefit  of  a  third  person,  as  in 
Manjield  v.  Dugard.  That  if  those  cases  therefore  had 
occurred  as  to  pecuniary  legacies,  there  was  no  ground  to 
say  that  the  decision  ought  to  have  been  different ;  for, 
from  the  very  same  circumstances  and  expressions  it  might 
be  collected  that  the  word  "  when"  was  used,  not  as  a  con- 
dition, but  merely  to  postpone  the  enjoyment,  the  possession 
in  the  meantime  being  disposed  of  another  way.  {lb.  246, 
247.)  That,  in  the  present  cause,  he  should  have  deter- 
mined against  the  plaintiffs,  if  it  stood  merely  upon  the  first 
words.  {lb.  249.)  But  the  legacy  was  accompanied  with 
an  absolute  gift  of  the  interest,  which,  according  to  the  estab- 
lished rule,  had  the  effect  of  vesting  it.   {lb.  250.) 

So  where  a  testator  gave  the  interest  of  money  in  the  j^f^e  v. 
funds  to  J.  H.  L.,  for  his  second  daughter  that  should  be  Qoudge.,  9 
born,  for  her  education,  till  she  should  attain  21;  and  after  Ves.  225. 
she  should  attain  21,  he  gave  the  interest  to  her  and  to  her 
heirs  for  ever,  she  being  christened  Z;  and,  in  default  of 
such  issue,  he  gave  the  same  to  the  second  son  o{  J.  H.  L. 
Vol.  II.— 17 


[159]        II.  S.iv.]  AN  ORIGINAL  VIEW  [§331. 

And  he  gave  30/.  a  year  to  J.  H.  L.  till  the  said  second 
daughter  should  attain  21;  and,  after  she  should  attain  21, 
then,  lie  gave  the  same  to  her  and  her  heirs  for  ever.     Sir 
W.  Grant,  M.  R.,  held,  that  both  bequests  were  vested:  for, 
as  to  the  first  bequest,  Z.  was  to  liave  the  whole  benefit 
during  her  minority  •,  and,  as  to  the  second  bequest,  suppos- 
ing that  the  Court  could  not  supply  the  words  expressing 
the  purpose  of  education,  and  that  the  father  himself  was 
entitled,  still,  it  was  an  interest  in  remainder,  to  take  effect 
in  the  child  at  the  age  of  21. 
Doc  d.  DoU       So  where  a  testator,  after   giving  a  life  interest  to  his 
Ze^v.Tr«rd,  daughter  aS'.,  in  freehold  and  leasehold  estates,  devised  the 
9  Ad.  &  El.  same  to  such  of  her  children  as  she  then  had,  or  might  have, 
582.  if  a  son  or  sons,  at  23,  and  if  a  daughter  or  daughters,  at  21, 

their  heirs,  executors,  administrators,  and  assigns,  as  tenants 
in  common ;  with  survivorship,  in  case  of  the  death  of  any 
child  or  children  of  S.  under  the  above  age ;  and  a  devise 
over,  in  case  of  the  death  of  all  of  them  under  that  age. 
[  160  ]  And  he  directed  that  the  rents  should  (after  all  necessary 
outgoings  for  repairs,  ground-rent,  and  insurance)  be  applied 
for  and  towards  the  maintenance  of  the  children  of  S.  until 
they  should  become  respectively  interested  as  before  men- 
tioned. It  was  held,  on  the  authority  of  Doe  d.  Eoake  v. 
Nowell,  and  Randoll  v.  Doc  d.  Roake,  that  the  children  took 
vested  interests  in  remainder,  immediately  on  the  death  of 
the  testator. 
Rolfc  V.  And  where  a  testator  directed  his  personalty  to  be  in- 

Sou-erby,  1    vested  in  the  hands  of  his  executors,  for  the  sole  use  and 
Taml.  376.    maintenance  of  his  daughter,  until  she  arrived  at  21;  and 
when  she  attained  21,  to  receive  the  overplus,  if  any;  Sir 
John  Leach,  M.  R.,  held  that  the  daughter  took  a  vested 
interest,  though  she  died  under  21. 
Breedon  v.         So  where  a  testator  gave  one  third  of  his  personal  estate 
Tugman,  3    to  his  daughter,  and,  in  case  of  his  decease,  to  have  the  in- 
M.  &  K.        terest  therein,  and  principal  when  she  attained  25.    Sir  John 
289.  Leach,  M.  R.,  held  that  it  was  an  absolute  gift  to  the  daugh- 

ter, and  that  the  payment  only  was  postponed  ;  that  the  tes- 
tator meant  not  to  qualify  or  restrict  the  previous  gift,  but 
to  distinguish  between  the  time  when  she  was  to  receive  the 
interest,  and  the  time  when  she  was  to  receive  the  principal; 
that  upon  both  grounds  therefore  the  daughter  must  be  held 
to  have  taken  an  immediate  vested  interest. 
Watson  V.         Again,  where  a  testator  desired  his  executors  to  pay  25i. 
Haije.s,  9       yearly,  by  quarterly  payments,  for  the  maintenance  and 
Sim.  500.      education  of  S.,  until  she  should  attain  21,  or  be  married; 
when  he  required  his  executors  to  pay  her  500/.     &\  died 
under  age,  and  unmarried.     Sir  L.  Shadwell,  V.  C,  held, 
that  she  took  a  vested  interest ;  becau^^e  25/.,  being  the  in- 


II.  8.  iv.]  OF  EXECUTORY  INTERESTS.  [§332— 33(j.        [  IGO  ] 

terest  on  500/.  at  5/.  per  cent.,  might  fairly  be  regarded  as 
intended  to  be  the  interest  olthe  legacy. 

And  in  another  case,  Sir  James  VVigram,  V.  C,  held,  that  Lester  v. 
the  legacy  was  vested,  observing  that  the  testator  had  given  Bradley,  1 
the  whole  interim  interest  for  the  benefit  of  the  legatees,  Hare,  10. 
which  would  vest  the  legacy,  even  if  the  gift  and  the  direc- 
tion to  pay  were  not  se|)arute  from  each  other. 

Willi  regard  to  the  reasons  for  the  foregoing  rule.  The  reasons 

332  I.   It  has  been  argued,  that  "a  legacy  given  at  a  for  the  rule; 
certain  age,  with  interest  in  the  meantime,  is  vest-  namely, 

ed,  because,  when  a  testator  directs  interest  to  be  paid  out  1.  Giving  of 
of  that  legacy  in  the  meantime,  lie  means  to  separate  that  [  ^^^  ] 
legacy  from  the  bulk  of  his  estate  immediately. "(o)  Tliis  interest 
may  perhaps  be  true  with  respect  to  a  pecuniary  legacy  :  shows  inton- 
but  this  reason  for  construing  a  gift  of  the  interim  income  as  ^'O"  ^^  ^^P''^* 
a  feature  of  vesting  is  obviously  inapplicable  to  residuary  i"atethelpg- 
bequesls,  and  to  devises  of  real  estate,  and  legacies  charged  ^^y  '^'Of"  "'^ 
tliereon. 

333  2.  Another  reason,  liowever,  has  been  assigned,  2.  Intermcrli- 
for  construing  a  gift  of  interest  as  a  mark  of  imme-  ^^'^  income 

diate  vesting,  which  is'applicable,  in  its  spirit,  though  not  in  '^  g'^'^"  '" 

terms,  both  to  residuary   bequests,  and  to  devises  of  real  respect  ot  a 

•  ••  I  vpstpfi  inter- 

estate,  where  the  interim  income  is  given  to  the  person  to    "^  . 

whom  the  postponed  devise  or  bequest  is  made.      ^^  m  ^  e 

334  Lord  Hardwicke,  in  Hubert  v.  Parsons,  2  Ves.  j^j^gfj^'^  ^ 
Sen.  264,  as  a  reason  why  interest  is  an  evidence 

of  vesting,  remarks,  that  "  interest  follows  the  property  of 
the  principal,  as  the  shadow,  the  substance."  And  it  has 
been  observed,  that  as  no  interest  could  accrue  to  the  legatee 
before  the  time  appointed  for  payment  of  the  principal,  the 
testator's  intention  in  giving  such  interest  must  be  presumed 
to  have  been,  to  give  the  capital  in  all  events  to  the  legatee, 
and  to  have  allowed  him  intermediate  interest,  as  a  recom- 
pense for  the  forbearance  of  the  capital. "(/?) 

335  The  reason  furnished  by  these  observations  ap- 
plies, in  terms,  to  personal  estate  alone ;  but  they 

suggest  a  general  reason  why  the  gift  of  the  whole  interme- 
diate income  of  real  or  personal  estate  is  considered  to  be 
evidence  of  an  interest  immediately  to  vest  the  estate  itself; 
and  the  reason  they  so  suggest,  is,  that  such  income  is  con- 
sidered to  be  given  in  respect  of  the  actual  existence  of  a 
vested  interest  in  the  property  itself. 

336  3.  But  why  then  is  the  gift  of  the  intermediate  3.  But  this 
interest  insufficient  to  vest  charges  on  real  estate  ?  construction 

Does  not  this  reason  equally  apply  to  such  charges,  as  well  of  a  girt  of 
as  to  devises  of  real  estates,  and  legacies  payable  out  of  per-  intermediate 
income  not 

(0)  Ars.  of  Counsel,  in  Hanson  v.  Graham,  6  \'es.  .lun.  241. 
(p)  1  kop.  Leg.  494. 


[   161   ]        II.  8.  iv.] 


AN  ORIGINAL  VIEW         [§337,  338. 


being  one 
that  arises 
from  neces- 

[   IG'^J   ] 
sary  impli- 
cation, such 
gift  is  not 
sufficient  to 
vest  an  in- 
terest, apart 
from  the 
leaning  in 
favour  of 
vesting. 


And  as  the 
leaning  in 
favour  of 
vesting  is 
counter- 
poised by 
other  consi- 
derations in 
the  case  of 
charges  on 
real  estate ; 
the  gift  of  the 
intermediate 
income  is 
insufficient 
to  vest  such 
charges. 
See  §  200-9. 

[   163  ] 


sonal  estate?  In  answer  to  this,  it  is  to  be  observed,  that 
the  construction  or  intendment,  that  the  income  is  considered 
as  given  in  respect  of  a  vested  interest  in  the  property  itself, 
is  not  one  arising  from  necessary  implication.  True  it  is, 
that,  inasmuch  as  a  vested  interest  would  give  a  right  to  the 
income,  the  gift  of  the  income  may  have  been  given  in  re- 
spect of  a  vested  interest;  and  that  the  settlor  or  testator 
may  have  thought  it  advisable  expressly  to  give  the  income, 
with  the  view  of  preventing  any  one  I'rom  supposing,  that 
he  meant  to  defer  the  vesting  in  right,  as  well  as  in  posses- 
sion or  enjoyment ;  or,  he  may  have  given  it  in  ignorance 
of  the  fact,  that  an  interest  vested  in  right,  but  not  in  pos- 
session, would  confer  a  right  to  the  intermediate  income, 
without  the  necessity  of  any  express  gift  of  such  income. 
But,  on  the  other  hand,  not  desiring  to  accumulate  the  in- 
come, but  yet  intending  to  keep  the  estate  itself  in  contin- 
gency, he  may  have  given  the  intermediate  income  in 
respect  only  of  the  probability  that  the  party  would  attain 
the  required  age,  and  thereby  acquire  a  vested  interest,  and 
on  account  of  the  expediency  that  he  should  receive  a  suit- 
able education  and  support. 

The  gift,  therefore,  of  the  whole   intermediate  337 

income,  would  seem  insufficient,  in  itself,  to  vest 
real  or  personal  estate,  the  possession  of  which  is  deferred 
till  the  attainment  of  a  given  age;  insufficient,  that  is,  apart 
from  the  strong  leaning  which  exists  in  favour  of  vest- 
ing. 

Now,  assuming  that  this  is  the  case,  we  are  fur-  338 

nished  with  an  adequate  reason  why  the  gift  of 
the  interim  income  is  insulRcient  to  vest  charges  upon  real 
estate,  although  it  is  sufficient,  of  itself,  to  vest  devises  of 
real  estate,  and  interests  arising  out  of  personal  estate.  It 
would  appear  from  the  reasons  already  given  for  the  sink- 
ing of  charges  on  real  estate,  even  where  the  future  time  is 
in  terms  annexed  to  the  payment  only,  that  there  is  no 
leajiing  in  favour  of  the  vesting  of  charges  on  real  estate, 
or  none  but  what  is  counterpoised  by  a  leaning  in  favour  of 
the  heir,  and  by  other  considerations.  Whereas,  in  the 
case  of  devises  of  real  estate,  and  interests  arising  out  of 
personal  estate,  there  is  a  strong  leaning  in  favour  of  vest- 
ing, and  one  which  is  not  counterpoised  by  any  other  con- 
siderations. It  is  true,  in  regard  to  devises  of  real  estate,  that 
the  heir  may  be  disinherited  by  giving  effect  to  a  devise;  and 
therefore,  at  first  sight,  the  favour  shown  to  the  heir,  might 
seem  equally  to  counterbalance  the  leaning  towards  vestitig, 
in  the  case  of  a  devise  of  real  estate,  as  in  the  case  of  a  charge 
upon  real  estate  created  by  will.  J3ut  it  is  to  be  observed, 
that  if  real  estate  is  devised  at  a  future  time,  and  the  inter- 
mediate income  is  given  to  the  devisee,  the  favour  which  is 


II.  8.  iv.J  OF  EXECUTORY  INTERESTS.  [§339— 340a.        [   1G3  J 

in  general  sliown  to  the  heir  at  kiw,  is  connterbalanced  by 
the  manifest  intention   of  the  testator  that  he  shonld  take 
nothing.     So  that  the  leaning  in  favour  of  the  heir  has  a  See  §  325. 
direct  eflect  in  counterbalancing  the  leaning  in  favour  of 
vesting,  in  the  case  of  charges  on  real  estate,  but  has  no  such 
effect  in  the  case  of  devises  of  real  estate  itself,  where  the 
intermediate  rents  are  disposed  of.     And  besides  this,  we  See  ^  324, 
have  seen   that  there   are  other  reasons   for   holding  such  32G. 
charges  not  to  be  vested,  which  do  not  apply  to  devises  of 

real  estate  itself,  or  interests  arising  out  of  personal 

estate. 

339  It  may  be  mentioned  in  this  place,  however,  But  if  a 
though,   indeed,  it  would   seem  sufficiently  clear  legacy 

without   any  judicial    determination  upon   the  point,  that  charged  on 
1  where  a  legacy  charged  on  real  estate  was  expressly  di-  I'^a'  estate  is 
rected  to  vest  immediately  on  the  testator's  death,  but  to  be  expressly  di- 
paid  to  the  legatee  on  attaining  21,  and  the  interest  in  the  reeled  to  vest 
meantime  was  directed  to  be  applied  for  maintenance,  and  °<^'0'''f  ^"^ 
the  legatee  died  before  21,  the  representative  of  the  legatee    ^^'  j*^*^f^^^.^i 
was  held  to  be  entitled,  by  force  of  the  express  direction  ^^  ^J^^ 
that  the  legacy  should  vest  on  the  testator's  death. (y) 

Rule  III. 

IVhere  Executors  are  empowered  to  make  advances  out  of 

Portions. 

340  And   where  the  executors  are  empowered   to 
make  advances  out  of  the  respective  portions  of 

children,  to  whom  a  residuary  bequest  is  made  on  their 
attaining  a  certain  age,  without  any  limitation  over ;  the 
children  take  immediate  vested  interests. 

A   testator   directed  his  residuary  personal  estate  to  be  y/j./u,,  v. 
equally  divided  amongst  his  children  on  their  attaining  21  ;  Mills,  1 
and  that  his  executors  should  make  any  moderate  advances,  Beav.  315. 
for  the  purpose  of  placing  his  children  out  in  a  profession,        [  164  ] 
from  their   resijective    portions.     Lord   Langdale,   M.    R., 
held  that  a  son  who  died  under  21  took  a  vested  interest. 

Rule  IV. 

Where  the  Postponement  is  apparently  from  Necessity,  or 
for  the  xficcomplishment  of  some  Special  Purpose  in  the 
meantime^  unconnected  with  a  Suspension  of  the  Pro- 
perty or  Ownership. 

340a  Where  there  is,  in  terms,  no  devise  or  bequest  See  §  341-3. 

except   on    the  attainment  of  a   certain   age,   or 

at  a  future  period  which  is  sure  to  arrive,  but  such  age  or  See  ^  281. 

period  does  not  form  part  of  the  original  description  of  the 

{q)   Wntkins  V.  Cheeh,  2  Sim.  and  Stu.  199. 


[  164  ]        II.  8.  iv.]  AN  ORIGINAL  VIEW  [§340a. 

devisee  or  legatee  ;  and  tlie  postponement  seems  merely  to 
arise  from  the  circumstances  of  the  estate;  or  appears  to  be 
for  the  accomplishment  of  some  special  purpose,  uncon- 
nected with  a  suspension  of  the  property  or  ownership  ; — as, 
for  the  purpose  of  'paying  the  debts  of  the  testator,  out  of 
the  intermediate  income(r)  or  out  of  a  part  of  the  estate, 
or  'merely  for  the  improvement  of  the  estate,  in  point  of 
value(5)  or  otherwise;  or  ^merely  for  the  benefit  or  con- 
venience of  some  other  person  to  whom  the  income,  or  a 
particular  interest,  is  given  in  the  meantime  ;{t) — in  such 
[  165  ]  case,  it  is  held  that  there  is  a  suspension  of  the  possession  or 
enjoyment,  only  and  not  of  the  property  or  ownership,  as  in 
the  case  of  a  present  vested  interest  in  real  estate,  subject  to 
a  term  for  years,  or  as  in  the  case  of  an  ordinary  vested  re- 
mainder in  real  estate,  even  though  there  is  no  prior  distinct 
gift,  no  express  gift  but  at  the  future  age  or  period. 
Baco?}  V.  Sir  Edmund   Lacon,  Bart.,   upon   the   marriage  of  his 

Proctor,  daughters,  deuiised  an  estate  to  trustees,  upon  trust  for  rais- 
Turn.  &  ing  certain  sums  to  be  settled  upon  the  daughters  and  their 
Russ.  31.  chUdren  :  and,  by  his  will,  (after  charging  the  estate  with 
See  also  other  sums  to  be  settled  upon  the  same  trusts;  with  por- 
Marshall  v.  tions  for  sons ;  and  with  a  further  sum  in  discharge  of  a 
Holloicay,  2  mortgage  of  another  estate ;)  devised  the  first  mentioned 
Swanston,  estate  to  trustees,  upon  trust,  from  time  to  time  to  receive 
4^1.  the  rents  and  profits,  and  invest  the  same  in  the  purchase  of 

stock,  so  as  to  accumulate  and  form  a  fund  for  the  payment 


(r)  Boraston's  Case,  3  Rep.  19;  as  stated,  Fearne,  242;  and  noticed  by  Sir 
W,  Grant,  in  Hanson  v.  Graham,  6  Ves.  239;  as  stated,  §  331. 

\s)  Love  V.  V Estrange,  Bro.  Pari.  Ca.  59,  8vo  ed. ;  as  stated,  1  Rop,  Leg. 
499.     See  also  Doe  d.  Wheedon  v.  Lea,  3  D.  &  E.  41  ;  as  slated,  Fearne,  246. 

(l)  1.  As  REGARDS  REAL  ESTATE,  scc  Manfelcl  V.  Diigard,  1  Eq.  Ab.  195  ; 
as  stated,  Fearne,  245 ;  and  noticed  by  Sir  W.  Grant,  in  Hanson  v.  Graham, 
6  Ves.  239;  as  slated,  §  331. 

2      As    REGARDS    LEGACIES    TAYABLE    OUT    OF    PERSONAL    ESTATE,  SCe    Monk- 

house  V.  Holme,  1  Bro.  C.  C.298;  Att.  Gen.  v.  Crispin,  lb.  386;  Benyon  v. 
Maddison,  2  Bro.  C.  C.  75,  ed.  by  Belt ;  and  Scarf  eld  v.  Hoives,  3  Bro.  C.  C. 
90  ;  as  stated,  1  Rop.  Leg.  503,  ed.  by  White.     Wadley  v.  North,  3  Ves.  364. 

3.    As     REGARDS    LEGACIES    PAYABLE     OUT     OF     REAL    ESTATE,     SGC     King     V. 

Withers,  Forrest,  117  ;  3  Bro.  Pari.  Ca.  135,  8vo  ed.;  Hutchins  v.  Foy,  Com. 
Rep.  716,  723;  Lowther  v.  Condon,  2  Atk.  127;  Ernes  v.  Hancock,  2  Atk. 
507;  Sherman  v.  Collins,  3  Atk.  322;  Hodgson  v.  Kan-son,  1  Ves.  Sen.  44; 
Tunstall  v.  Brachcn,  Ambl.  167  ;  1  B.  C.  C.  124,  in  note;  Emhrey  v.  Martin, 
Ambl  230;  Manning  v.  Herbert,  Ambl.  575;  Jeal  v.  Tichcner,  1  B.  C.  C. 
120;  in  note;  Clarke  v.  Ross,  2  Dick.  529;  1  Bro.  C.  C.  120,  in  note;  Kemp 
V  Davy,  1  Bro.  C.  C.  120,  in  note;  Pawsey  v.  Edgar,  1  Bro.  C.  C.  192,  m 
note;  Thompson  v.  Dow,  1  Bro.  C.  C.  193,  in  note;  Morgan  v.  Gardiner,  1 
Bro  C  C.  194,  in  note;  Daioson  v.  Killet,  1  Bro.  C.  C.  119;  Godwin  v.  Mvn. 
day,  1  Bro.  C.  C.  191  ;  and  Walker  v.  Main,  1  Jac.  &  Walk.  1,7;  as  stated. 
1  Rop.  Leg.  560—571. 


II.  8.  iv.]       OF  EXECUTORY  INTERESTS.       [§340a.        [  165  ] 

of  the  aforesaid  charges ;  and,  after  the  same  should  have 
been  raised  and  paid,  upon  trust  for  the  person  in  whom, 
for  the  time  being,  the  baronetcy  should  be  vested,  to  the 
end  tliat  the  estate  might  go  along  with  the  title,  so  long  as 
the  rules  of  law  and  equity  would  permit.  It  was  held, 
that  the  trust  for  accumulation  was  good;  and  that  an  estate 
for  life  vested  at  once  in  the  succeeding  Baronet,  subject  to 
the  charges,  instead  of  being  postponed  till  after  the  accu- 
mulation should  be  determined.  Graham,  Baron,  sitting  for 
the  Master  of  the  Rolls,  observed,  that  there  was  no  accu- 
mulation for  the  purpose  of  suspension  ;  that  the  Act  of  the 
39th  and  40lh  of  Geo.  III.  did  not  apply  ;  and  if  it  did,  there  [  166  ] 
was  an  exception,  in  the  case  of  debts  and  portions;  and 
that  it  was  quite  clear  that  the  enjoyment,  and  not  the  pro- 
perty, was  tied  up. 

In  another  case,  a  testator  devised  leasehold  houses,  held  Goodright 
for  a  term  renewable,  to  J.  T.  S.  for  his  own  use  and  benefit  d.  Revdl  v. 
on   liis  attaining  21  ;  upon  trust  that  iiis  (testator's)  trustees  Parker,  1 
should  renew  ;  and  for  that  purpose  make  such  surrender  Maul.  &  Sel. 
as  should  be  requisite  ;  and,  out  of  the  rents,  to  raise  money  692. 
for  the  fines:  and  also  to  permit  the  trustees  to  receive  the 
rents  during  the  minority  of/.  T.  S.;  and  the  maintenance 
oiJ.  T.  S.  during  his  minority  to  be  paid  out  of  the  rents. 
J.  T.  S.  died  under  21.     It  was  held,  that  this  was  in  effect 
a  devise  to  the  trustees  till  J.  T.  S.  attained  21,  with  a  vest- 
ed remainder  to  J.  T.  S. 

Again  ;  a  testator  devised  land  to  his  wife,  for  life  ;  and,  Bayley  v. 
after  her  decease,  to  trustees,  upon  trust  to  sell,  and,  out  of  Bishop,  9 
tlie  proceeds,  to  lay  out  500/.,  part  thereof,  in  the  purchase  Yes.  6. 
of  an  annuity  for  the  life  of  his  son.  The  son  died  in  the 
lifetime  of  the'  widow.  It  was  argued  that  he  took  nothing; 
because,  a  legacy  charged  upon  land  does  not  vest  till  the 
time  of  payment.  But  Sir  W.  Grant,  M.  R.,  though  he  said 
it  was  impossible  to  reconcile  all  the  cases  of  legacies  payable 
out  of  land,  held  that  on  the  authority  of  Dawson  v.  Killet, 
1  Bro.  C.  C.  119,  the  son  took  a  vested  interest  on  the  testa- 
tor's death.  He  previously  expressed  his  opinion,  that  it  was 
clear  that  the  testator  meant  an  animity.  in  the  proper  sense, 
to  be  purchased,  which  was  the  same,  in  effect,  as  giving  a 
legacy  of  500/.  to  his  son  :  for,  on  a  bill  filed,  he  might  have 
received  the  money,  and  the  Court  would  not  have  compel- 
led the  trustees  to  lay  it  out  in  an  annuity. 

So  where  a  testator  gave  to  G.  P.  a  sum  of  stock  at  the  Blamire  v. 
testator's  wife's  death,  and  all  the  residue  of  his  estate  he  Geldart,  16 
gave  to  his  wife.     Sir  W.  Grant,  M.  R  ,  held  that,  in  effect,  Yes.  314. 
he  took  a  vested  remainder;   the  order  in  which  the  clauses 
are  arranged  in  a  will,  not  being  material. 

And  where  a  testator  devised  in  trust  for  his  wife  for  life,  Goxilhovrn 
if  she  should  so  long  continue  his  widow;  and,  after   \\qv  \.  Brooks, 'Z 


[    166   ]         II.  8.  iv.] 


AN  ORIGINAL  VIEW 


[§340a. 


You.  &  Coll. 
539. 

[   167  ] 


Cousins  V. 
Schroder,  4 
Sim.  23. 


Poole  V. 
Terry,  4 
Sim.  294. 


Spencer  v, 
Bullock,  2 
Ves.  6R7. 


[    168   ] 


deatli  or  mavriagc,  for  the  maintenance  of  his  son  T.  B.,  and 
his  daughter  E.  B.,  until  21 ;  and  then,  at  the  death  or  mar- 
riage of  his  wife,  he  devised  to  his  son,  T.  B.,  and  the  heirs 
of  his  hody,  only  yielding  and  paying  to  his  daughters,  M. 
and  E.,  100/.  each.  M.  attained  21,  and  died  after  the  mar- 
riage of  the  widow,  but  before  T.  and  E.  attained  21.  Al- 
derson,  B.,  held  that  the  legacy  did  not  lapse,  the  payment 
being  postponed  for  the  convenience  of  the  estate,  and  not 
as  a  condition  annexed  to  the  person  of  the  legatee. 

Again  ;  where  a  testator  gave  all  his  real  and  personal 
estate,  after  payment  of  debts  and  legacies,  to  his  wife,  for 
life;  and  directed  that,  at  the  end  of  12  months  after  his 
death,  1000/.  should  be  laid  out  in  trust  for  his  daughter, 
for  life  ;  and,  after  her  decease,  to  divide  the  capital 
amongst  her  children,  when  and  as  they  should  attain  21. 
Two  of  the  children  attained  21,  but  died  in  the  lifetime  of 
the  widow ;  one  of  them  within  12  months  after  the  death 
of  the  testator.  It  was  argued,  that  in  order  to  acquire 
vested  interests,  the  legatees  must  be  living  at  the  time 
when  the  legacies  were  to  be  paid  ;  and  Cnise  v.  Barley^ 
3  P.  W.  20,  and  3  Atk.  219,  were  cited  in  sii})port  of  this 
view.  But  Sir  L.  Shadwell,  V.  C,  held,  that  the  children 
having  attained  21,  took  vested  interests. 

And  so  where  a  testator  devised  real  estates  to  A.^iox 
life ;  remainder  to  B.,  in  fee  ;  and  he  gave  a  legacy  to  C, 
to  be  paid  to  her  by  B.,  within  12  months  after  ./^.'s  death; 
and  he  charged  all  his  estates  with  the  legacy.  C.  died  in 
A.'s  lifetime.  Sir  L.  Shadwell,  V.  C,  held,  that  the  pay- 
ment was  postponed  on  account  of  the  circumstances  of  the 
estate,  and  that  the  legacy  vested  on  the  death  of  the  tes- 
tator. His  Honour  added,  that  this  case  fell  within  the 
principle  of  Loivther  v.  Condon,  2  Atk.  127,  and  the  cases 
of  that  class. 

In  one  case,  a  testator,  after  giving  legacies  to  three  other 
children  at  a  future  lime,  gave  his  residuary  personal  estate 
to  his  executors,  to  be  equally  divided  among  his  four  chil- 
dren, whom  he  named;  the  share  of  his  daughter  J.  E.  to 
be  invested  for  her  separate  use,  for  life,  and  the  principal 
for  her  children,  at  her  decease,  if  more  than  one,  share  and 
share  alike;  provided,  that  in  case  any  of  his  children  should 
die  before  his,  her,  or  their  shares  should  become  payable, 
leaving  any  child  or  children  of  such  of  his  said  children 
who  should  happen  to  survive  their  parent,  such  child  or 
children  should  be  entitled  to  their  parent's  share,  equally, 
if  more  than  one,  and  if  but  one,  then,  the  whole  to  such 
only  child.  ./.  E.  had  three  children  at  the  date  of  the  will, 
and  six  others  afterwards,  three  of  whom  died  in  her  life- 
time. Sir  R.  P.  Arden,  M.  R.,  held,  that  the  bequest 
vested    in   those  children  only   who  were   living  at  their 


II.  8.  IV. J      OF  EXECUTORY  INTERESTS.  [§3U.        [   HiS  J 

mother's  death.  The  learned  Judge  observed,  that  the 
proviso,  though  it  could  not  apply  to  the  case  of  J.  E.,  yet 
was  strong  to  show  the  intention  ;  though  his  opinion  was 
chietly  grounded  upon  the  circumstance  of  J.  E.  having 
three  children  at  the  date  of  the  will.  That  if  it  had  vested 
in  them,  and  thoy  had  died  before  the  testator,  it  would 
have  become  lapsed.  That  the  testator  could  not  mean  the 
three  then  living  to  take  vested  interests,  which,  in  case  of 
their  death  before  him,  would  iiave  made  it  undisposed  of 
residue;  but  he  was  clearly  of  opinion,  that  he  meant  to 
dispose  of  that  residue:  nothing,  therefore,  vested  in  the 
children  till  the  death  of  (heir  mother. 

So  far,  however,  as   this  decision  rests  upon  the  latter  Observations 
ground,  it  would  ajipear  questionable:  for,  apart  from  {\\q  on  Spencer 
proviso,  tlic  cases  would  seem  to  show,  that  all  the  children  v.  Bullock. 
who  were  in  esse  at   the  death  of  the  testator,  would  take 
vested  interests;  and  all  others  born  afterwards,  would  also 
take  vested  interests,  as  soon  as  they  came  in  esse. 

Rule  V. 

Cases  of  Residuary  Bequests  on  Marriage. 

,341  In  the  case  of  a  residuary  bequest,  where  there 

is  no  limitation  over  on  the  non-happening  of  the 
event  on  which  the  gift  is  apparently  contingent,  the  gift  of 
the  wliole  interim  income  in  trust  for  the  residuary  legatee, 
will  be  a  sufficient  indication  of  immediate  vesting,  though 
the  event  specified  is  that  of  marriage,  unless  it  is  to  be 
with  consent:  because,  where  there  is  no  such  limitation 
over,  "every  intendment  is  to  be  made  against  holding  a 
man  to  die  intestate,  who  sits  down  to  dispose  of  the  resi- 
due of  his  property." 

A  testator  gave  the  residue  of  his  personal  estate,  upon  Booth  v. 
trust,   to  pay  the   dividends   equally  between   his   grand-  Booth,  4 
nieces,  P.  B.  and  A.  B.,  until  their  respective  marriages;  Ves.  399. 
and  from  and  immediately  after  their  respective  marriages,        [  169  ] 
to  transfer  their  respective  moieties  thereof,  unto  them  re- 
spectively.    P.  B.  died  without  ever  having  been  married. 
Sir  R.  P.  Arden,  M.  R.,  directed  one  moiety  to  be  paid  to 
her  executors,  His  Honour  being  of  opinion,  that  only  the 
payment  or  actual  possession  was  postponed  until  the  mar- 
riages of  the   grand-nieces,  i.  e.,  until  the  time  when  the 
testator  thought  they  would  want  it.    His  Honour  observed, 
that  every  intendment  is  to  be  made  against  holding  a  man 
to  die  intestate,  who  sits  down  to  dispose  of  the  residue  of 
his  property,  (4  Ves.  407.)     That  Garhut  v.   Hilton,  and 
jit  kins  V.  Hiccocks,  1  Atk.  381,  500,  and  Elton  v.  Ellon, 
3  Atk.  504,  were  cases  of  a  mere  legacy,  and  not  of  a  resi- 
due, and  then  the  legacy  was  given  on  a  marriage  with  a 
Vol.   li,— is 


L  169  ]        II.  S.  iv.]  AN  ORIGINAL  VIEW        [§342—344. 

given  consent,  and  it  was  impossible,  in  that  sort  of  case,  to 
say  the  legatee  could  be  entitled  without  that  •,  and  that 
Batsford  v.  Kebbell,  was  also  a  mere  case  of  a  legacy ; 
whereas,  this  was  iu  fact  an  absolute  gift  of  the  residue, 
and  accordingly,  the  testator  spoke  of  it  as  their  shares  of 
the  residue. 

Rule  VI. 

Cases  of  Particular  Bequests  or  Devises  where  the  Period 
is  an  Uncertain  Period  other  ttian  that  of  tfie  Jittain- 
tnent  of  a  given  *fige. 

See  §  310.         But,  in  general,  neither  the  disanncxing  of  the  342 

See  §  328,     period  from  the  gift  itself,  nor  the  disposition  of  the 

340a.        '     property,  or  the  beneficial  interest  therein  for  any  special 

purpose  in  the  meantime,  will  be  a  sufficient  indication  of 

immediate  vesting,  where  the  period  is  one  that  may  never 

arrive,  unless  it  is  the  period  of  the  attainment  of  a  certain 

age,  not  being  an  advanced  age,  which  is  regarded  in  a  dif- 

See  §  351a.  ferent  light  from  other  uncertain  periods  or  events,  because 

it  is  most  probable,  generally  speaking,  that  a  person  will 

live  to  attain  the  age  of  21,  or  some  few  years  older,  and, 

in   fact,  that   only  involves   the   probable   continuance   of 

something  which  already  exists,  namely,  of  a  life  already 

commenced. 

Where  the  event  may  never  arrive,  there  is  a  343 

strong  improbability  in  supposing  that  the  testator 
intended  the  devisee  to  take  a  vested  interest,  and  yet  to  ex- 
[  170  ]  elude  him  from  the  possession  till  the  arrival  of  the  uncer- 
tain period:  it  is  more  natural  to  suppose,  that  the  testator 
intended  the  interest  of  the  devisee  to  be  contingent  until 
that  period  should  arrive,  though,  in  cases  where  the  be- 
quest is  a  residuary  bequest,  and  the  event  is  that  of  mar- 
riage, the  improbability  above  mentioned  is  considered  to  be 
overborne  by  a  still  stronger  improbability. 

Rule  VII. 

Where  the  Event  of  attaining  a  given  Age,  is  introduced 
by  Words  importing  a  Contingency,  and  constituting 
a  Condition  Precedent. 

And  as  the  interest  is  in  general  deemed  contin-  344 

gent,  where  the  period  or  event  to  which  the  de- 
See  k  342-3  vise  or    bequest    has    reference,  is  entirely  contingent,   so 
'  "  where  a  devise  has  reference  to  the  attainment  of  a  given 
age.  and  it  is  preceded  by  the  conditional  expressions,  "if," 
See  §  290,     or  "  in  case  "  he  shall  attain,  &c.,  instead  of  being  followed 
298-300.  '     by  these  or  any  other  conditional  expressions,  or  of  being 
preceded  by  the  expressions,  "when,"  "at,"  "upon,"  "as 


II.  8.  v.]      OF  EXECUTORY  INTERESTS.  [§34G.        [  170  ] 

soon  as,"  "from  and  after;"  or  wliere  a  bequest  is  either  See  §  290-5. 
preceded  or  followed  by  any  one  of  the  conditional  expres- 
sions, "if,"  "provided,"  or  "incase  he  shall  attain,"  &c.; 
there,  inasmuch  as  the  words,  "  if,"  "  provided,"  "  in  case," 
properly  import  contingency,  the  use  of  these  words  hidi- 
cates  that  the  testator  considered  the  attaiiniient  of  the  given 
age  as  an  event  that  might  never  arrive;  and  Fience,  not- 
withstanding the  disannexing  of  the  i)eriod  from  the  gift,  or 
the  existence  of  a  prior  devise  or  bequest,  it  will  be  presum- 
ed that  the  testator  intended  the  interest  of  the  devisee  to  be 
contingent  until  the  attainment  of  the  age  specified, (?/)  for 
the  reasons  given  under  the  next  preceding  rule,  for  holding 
an  interest  to  be  contingent,  where  the  devise  or  bequest 
has  reference  to  other  events  of  an  entirely  contingent  cha-  [  171  ] 
racter. 

Rule  VII I. 
Where  a  Trustee  is  appointed  for  the  Intermediate  Tirne, 

If  a  bequest  be  made  to  children  when  they  shall  attain  a 
certain  age,  and  the  testator  appoints  a  person  to  be  a  trus- 
tee for  them  during  the  intermediate  time,  it  is  a  sufficient 
indication  of  immediate  vesting. 

A  testator  gave  to  two  children,  certain  personal  estate,  Branstrom 
when  they  should  attain  21,  to  be  equally  divided  between  v.  Wilkin- 
them  ;  and  slie  appointed  their  father  in  trust  for  them  during  son,  7  Ves. 
their  minority.     Sir  W.  Grant,  M.  R„  said,  that  only  the  420. 
payment  was  postponed,  since  the  testator  would  not  have 
appointed  a  trustee  for  them  of  nothing. 

SECTION  THE  FIFTH. 

Cases  lohere  a  Devise  has  Reference  to  an  Event  which 
would  be  implied  by  the  IVords  introducing  a  Vested 
Rem,ainder. 

346  Such  words  as  when,  then,  after,  as  soon  as,  and 

"even  the  word  if,(a)  or  the  words  in  case,  though 
apparently  amounting  to  a  condition  precedent,  which  must  See  §  13. 
be  performed  before  a  remainder  or  quasi  remainder  can  be-  See  §  159, 
come  a  vested  interest,  have  no  other  force  than  to  point  168.16Sb. 
out  the  time  when  the  remainder  or  quasi  remainder  is  to 
be  clothed  with  the  possession  or  enjoyment,  in  cases  where 
the  condition  to  which  they  refer,  would  have  been  neces- 

(w)  See  Atkinson  v.  Turner,  2  Alk.  41  ;  Elton  v.  Ellon,  3  Atk.  504  ;  and 
Knight  V.  Cameron,  3  Bro.  C.  C.  471  ;  as  stated  1  Rop.  Leg.  490,  491 ;  which 
are  cases  of  personal  estate.  And  sec  Fearne,  246,  and  Brcurnsicord  v.  Ed' 
wards,  2  Ves.  Sen.  243;  as  cited  Fearne,  506,  548,  in  regard  to  devises. 

(o)  Holcroft's  Case,  Moor,  487. 


[171]        II.  S.  V.];  AN  ORIGINAL  VIEW         [§317—350. 

sarily  implied  without  them  by  the  words  which  usually 
introduce  a  vested  remainder.     Thus, 
Cases  from         '•Where  a  testator  devised  to  S.  his  sou,  after  347 

Fcarne,  with  the  death  of  his  wife;  and  if  his  three  daughters, 
observations  or  either  of  them,  should  overlive  their  mother  and  *S'.  their 
thereon.  brother  and  his  heirs,  they  to  enjoy  the  same  houses  for  the 

term  of  their  lives,  remainder  to  J.  and  fV.;  the  word  heirs 
meant  heirs  of  the  body,  and  the  hmitation  to  J.  TV.  was  a 
[  172  ]  vested  remainder  :(6)  because  the  condition  of  the  daughters 
surviving  till  the  expiration  of  the  preceding  estates,  would 
have  been  necessarily  implied,  inasmuch  as  their  estate  in 
remainder  was  only  to  be  for  life,  and  therefore  could  not 
take  effect  at  all  unless  they  survived. 

And  so  =  where  a  testator  devised  three  houses  348 

to  his  three  children  respectively,  and  willed,  that 
if  either  of  his  said  children  should  depart  this  life,  then  the 
iiouses  so  given  them  should  be  equally  divided  between 
them  that  are  living,  every  child  took  a  particular  estate  in 
his  or  her  house  for  life,  with  a  vested  remainder  to  the  others 
for  their  lives.(c)  The  death  of  the  children  was  an  event 
certain,  constituting  in  itself  the  boundary  of  their  estates, 
by  force  of  the  general  limitation  implied  under  the  old  law. 
(See  §28,  33.)  And  the  survivorship  would  have  been  im- 
plied in  the  words  commonly  used  in  introducing  a  vested 
remainder  after  a  life  estate,  as  the  remainders  were  only 
for  life. 
See  §  170-         In  both  these  cases,  the  remainders  depended  on  349 

182.  no  other  uncertainty,  as  to  the  possession  itsell^, 

than  that  of  their  enduring  beyond  the  preceding  estate. 

Thus,  in  the  first  case,  the  remainder  to  J.  and  W,  de- 
pended on  no  other  uncertainty  than  that  of  their  interests 
continuing,  without  being  annihilated  by  death,  surrender, 
or  forfeiture,  till  the  expiration  of  the  preceding  estates. 

And,  in  the  second  case,  each  child  had  a  remainder  in 
the  houses  of  the  others,  which  was  sure  to  take  effect  in 
possession,  if  such  interest  in  remainder  did  not  determine 
by  his  own  death,  surrender,  or  forfeiture,  before  the  pre- 
ceding estates  of  the  others. 

It  was  urged  that  the  remainders  in  the  second  350 

case,  were  remainders  to  the  survivors,  and  there- 
fore contingent,  inasmuch  as  it  was  uncertain  which  of  the 
persons  would  survive.      But  this   case  is  distinguishable 
[  173  ]        from  a  grant  to  two  for  their  joint  lives,  remainder  to  the 
survivor  for  life,  or  in  tail ;  for,  here,  so  long  as  their  joint 

{h)  Webb  V.  Hearing,  Cro.  Jac.  415;  as  slated,  Fcarne,  243.  See  also 
King  V.  llumbnll,  Cro,  .Jac.  448,  and  Chadock  v.  Cowley,  Cro.  Jac.  695 ;  as 
stated,  Fearne,  24.'i.     And  Anon.  Case,  2  Ventr.  303 ;  as  stated,  Fearne,  244. 

(c)  Furlescue  v.  Jibbut,  Poliex.  479  ;  Sir  T.  Jones,  79  ;  as  stated,  Fearne,  243. 


II.  8.  v.]      OF  EXECUTORY  INTERESTS.  [§350.        [  173  ] 

lives  cnntimic,  ncithor  can  say  that  he  has  a  remainder: 
there  is  but  one  reiiiaiiuler ;  and  that  is  contingent  on  ac- 
count of  the  person, apart  iVoni  the  consideration  ofitsdura-  See  §  94, 
lion.  In  the  former  case,  however,  there  are  as  many  remain-  187. 
ders  as  there  are  persons,  and  each  has  a  remainder,  though 
it  cannot  take  efl'ect  in  possession  unless  it  endures  beyond 
the  others'  life  interest,  that  is,  unless  the  person  entitled  to 
it  survives  the  other,  in  whose  house  the  remainder  subsists. 
And  the  cases  above  mentioned  are  also  clearly  distinguish- 
able from  ''a  devise  to  7l/., during  her  natural  life  ;  and,  from 
and  immediately  after  her  death,  to  the  fust  son  of  her  body, 
if  living  at  her  death,  and  the  heirs  male  of  such  first  son  ; 
and  for  default  of  such  issue,  to  the  second  son  of  her  body, 
if  living,  at  the  time  of  her  decease,  and  the  heirs  male  of 
such  second  son;  and  so  to  the  third  and  other  subsequently 
born  sons,  in  tail  male;  and  lor  default  of  such  issue,  re- 
mainder over.(^)  For,  here,  the  words  "if  living  at  iier 
death,"  imported  a  condition  precedent,  instead  of  merely  See  §  in. 
expressing  that  kind  of  condition  which  would  have  been 
implied  without  them  by  the  words  which  usually  introduce 
a  vested  remainder:  because  they  evidently  amounted  to  the 
same  as  the  words,  "  to  the  first  son  of  her  body  who  shall 
happen  to  be  living  at  her  death,"  which  would  have  clear- 
ly passed  a  contingent  remainder  of  the  fourth  kind,  as  in  See  §  187. 
that  case,  the  person  who  would  eventually  be  entitled, 
could  not  be  ascertained  till  her  decease. 

And  where  a  testatrix  gave  a  legacy,  in  trust,  to  pay  the  Peamall  v. 
interest  to  M.  S.,  for  life,  for  her  separate  use ;  and,  after  Simpson,  15 
her  decease,  to  divide  the  capital  among  her  children  then  Ves.  29. 
living,  to  be  paid  at  21  ;  and  if  there  should  be  no  child  who 
should  survive  M.  S\,  and  attain  21,  then,  to  pay  the  inter- 
est to  her  husband,  B.  S.,  for  life ;  and  from  and  after  his 
decease,  in  case  he  should  become  entitled  to  such  interest, 
then,  to  divide   the   principal   among   the   testatrix's  first 
cousins.     M.  S.  died  without  leaving  issue,  and  though  the 
husband  died  in  her  lifetime,  and  therefore  never  became        [   174  ] 
entitled  to  the  interest,  the  limitation  over  was  established  ; 
Sir  W.  Grant,  M.  R.,  observing,  that  there  was  no  sense  in 
making  the  right  of  the  first  cousins  depend  on  the  husband's 
taking  the  interest;  and  that  it  was  not  a  condition  prece- 
dent, but  fixing  the  period  at  which  the  legatees  over  should 
take,  if  he  ever  took. 

(</)  Denn  d.  Radchjffc  v.  Bagshatve,  6  D.  ^S^  K.  512  ;  as  stated,  Fearne,  246, 
note  (/j). 


[  174  ]        II.  S.  vi.]  AN  ORIGINAL  VIEW  [§351. 


SECTION    THE    SIXTH. 

I  Wheretlie  Effect  of  a  Limitation  over. 

condition  of       I.  Where  a  testator  devises  to  a  person  "if,"  or  351 

attaining  a  «  in  case,"  or  "  provided"  he  lives  till  a  certain  age, 
certain  age  ^q  that  the  expressions  "  if,"  or  "  in  case,"  or  "  provided," 
is  introduced  ^^  j^qj  precede,  but  follow  the  devise,  and  constitute  part  of 
by  the  words  jj-,g  ^^xviG,  sentence  in  which  it  is  made;  (See  §  297 — 300, 
"  '  „"  '"  344)  and  there  is  a  devise  over,  simply  in  the  event  of  his 
u^^^'  .-^"^i  '5  not  attaining  such  age;  the  conditional  expressions  are  not 
P,'°\'.  ".'  construed  as  a  condition  precedent,  but  as  forming  a  regular 
the  devise  special  limitation  of  the  indirect  kind,  or  an  irregular  limita- 
and  there 'is  ^'<^"'  (^®^  §  1^'  '^^ — '^'^)  amounting  to  the  same  as  the  words, 
a  devise  over  i^  ^^^  should  continue  to  live  till,  or  if  he  should  not  die  be- 
simplv  in  the  foi"P>  he  attains  21;  and  the  interest,  instead  of  being  a 
event  of  the  springing  interest,  or  a  contingent  remainder,  (See  §  117, 
non-attain-  159,  170 — 176)  is  held  to  be  a  vested  interest,  either  imme- 
nient  of  that  diate,  or  in  remainder,  as  the  case  may  be,  subject  to  be 
age.  devested,  as  well  by  the  operation  of  the  special  limitation, 

See  §  97-8.    as  by  the  operation  of  the  devise  over. 

Spring  v.  A  fine  was  levied  to  the  use  of  ^.,  and  his  heirs,  if  B.  did 

Csesar,  1  not  pay  him  20  shillings  on  the  10th  day  of  September ;  and 
Roll.  Abr.  if  B.  paid  it,  to  the  use  o{  Ji.,  for  life  ;  remainder  to  B.  and 
415,  pi.  12.  his  heirs;  and  it  was  held  not  to  be  a  condition  precedent, 
but  that  the  estate  in  fee  vested  in  ^.  immediately,  to  be 
devested  on  the  subsequent  payment. 
Edwards  v.  r^.  surrendered  lands  to  the  use  of  himself,  for  life ;  re- 
Hammond,  mainder  to  the  use  of  J.  H.  and  his  heirs,  if  it  shall  happen 
1  New  Rep.  that  the  aforesaid  J.  11.  shall  live  to  attain  the  age  of  21 
314,  as  sta-  years;  provided  always,  and  under  the  condition  neverthe- 
ted,Fearne,  less,  that  if  it  shall  happen  that  the  aforesaid  J.  H.  shall  die 
[  1''^  ]  before  he  attain  the  age  of  21  years,  then  to  remain  to  the 
245,note(o-).  ^^^  ^^  ^  ^^^  j^j^  \\Q\xs.  It  was  held  that  J.  H.  took  a  vest- 
ed interest  before  21. 
Broomfeld  And  where  a  testator  devised  all  his  real  estate  to  two, 
v.  Crou'der,  for  their  lives  successively ;  and,  after  the  decease  of  the 
1  Now  Rep.  longest  liver  of  them,  to  B.,  if  he  lived  to  attain  the  age  of 
313,  as  21  years,  but  not  otherwise;  and  in  case  he  died  before  he 

stated,  attained  that  age,  then  in  the  manner  therein  mentioned. 

^^^™^'  ^'*^'  The  two  particular  tenants  died  before  B.  attained  21  ;  and 
note  (ft)         jj^  ^^^^  Yield  i}iat  B.  took  a  vested  interest,  determinable  on 

his  dying  under  21. 
Doe  d.  Plan-  ^^^  where  a  testator  devised  lands  to  G.  L.,  his  brother 
ner  v.  Scud-  a^d  heir  at  law,  for  life ;  and  from  and  immediately  after 
amore,2  Bos.  his  death,  then,  he  devised  the  same  to  C.  B.,  her  heirs  and 
&  Pul.  289.  assigns,  in  case  she  should  survive  (?.  Z.,but  not  otherwise; 
and  in  case  C.  B.  should  die  in  the  lifetime  of  G.  L.,  then, 
he  devised  the  same  to  G.  L.,  his  heirs  and  assigns.     It  was 


II.  8.  vi.J  OF  EXECUTORY  INTERESTS.  [§351a,  352.        [  175  ] 

argued  tl)at  cither  the  devise  to  C.  B.  was  a  vested  remain- 
der, subject  to  be  devested  upon  a  condition  snbseiiuent, 
like  the  case  o[  Edwards  v.  IJamiiwnd ;  or  that  the  devise 
to  the  lieir  at  law  for  life  was  to  be  considered  void,  and  the 
devise  to  C.  B.  considered  as  an  executory  devise,  to  take 
eflect  if  the  l*eir  at  law  should  die  before  C.  B.  But  it  was 
held,  that  the  devise  to  C.  B.  was  a  contingent  remaind('r, 
and  was  barred  by  a  recovery  suli'ered  by  G.  L.,  on  the 
ground  that  it  was  clear  that  the  event  was  to  happen  be- 
fore tlie  estate  should  vest,  and  that  a  limitation  which  may 
be  construed  as  a  contingent  remainder,  shall  not  be  con- 
sidered as  an  executory  devise. 

Now  this  case  may  be  clearly  distinguished  from  Ed- 
ivards  v.  Hammond. 
351a  The  event,  in  that  case,  namely,  the  attainment  Observations 

of  21,  is  one  which  is  often  considered  as  a  qnasi  on  die  pre- 
certain  event,  so  that  it  is  not  reijuired  that  the  vesting  of  an  cedingcascs, 
estate  should  be  suspended  till  the  happening  of  such  event;  showing  the 
it  is  sufiicient  if  the  estate  be  devested  in  case  it  should  not  pnnciple  ot 
happen,  especially  as  that  event  is  not  of  such  a  character  as  ^!'^  th^tinc- 
to  constitute  the  indispensable  pre-requisUe  to  the  attachmg  jl  ^^^^^^,^3 
of  any  sort  of  interest  in  the  party ;  on  the  contrary,  it  is  ^^°^^^  '^^^ 
rather  to  be  supposed,  that  the  testator,  considering  it  most  ^.^j^^ij^i^,,^  j^ 
probable  that  the  party  would  attain  21,  should  be  maintain-        f  176   ] 
ed  in  a  suitable  manner,  out  of  the  rents  and  profits,  as  he  ^j^^  attain- 
would  be  if  he  should  take  a  vested  interest,  instead  of  allow-  fnentofacer- 
ing  those  rents  and  profits  to  go  to  his  heir  at  law,  whom  he  j^jj^  ago,  and 
has  shown  no  intention  to  benefit.     But,  in  the  principal  those  where 
case,  there  was  evidently  an  estate  for  life,  with  a  contingent  the  condition 
remainder  to  C.  B.  depending  on  her  surviving  the  tenant  is  of  another 
for  life;  with  an  alternative  limitation  over,  in  the  event  of  kind, 
her  dying  before  the  tenant  for  life.     For,  C  B.  was  not  a  See  §  128. 
relative  of  the  testator,  but  an  unmarried  female  friend,  who 
resided  with  him,  and  superintended  his  family,  and  conse- 
quently there  was  more  reason  for  considering  her  survivor- 
ship as  a  condition  precedent,  than  there  would  have  been  See  §  13. 
if  her  children  or  heirs  were  relatives  of  the  testator.     And 
the  reason  which  existed  in  the  case  of  Edwards  v.  IJam- 
?nond  for  holding  the  remainder  vested,  did  not  apply  to  this 
case,  as  C.  B.  would  have  been  entitled  to  the  rents  and  pro- 
fits as  soon  as  G.  L.  died,  and  no  sooner,  whether  the  re- 
mainder were  vested  or  contingent. 
352  The  effect  of  the  devise  over  upon  the  prior  in-  The  eflect  of 

terest,  in  such  cases  as  these,  is  to  aid  in  rendering  the  devise 
the  prior  interest  defeasible;  and  in  some  cases,  also,  if  the  over  in  the 
condition  referring  to  the  attainment  of  the  specified  ages  above  cases, 
begins  with  the  word  ''provided,"  to  change  that  condition  ^*'^)-^.; 
from  a  condition  snbsequent,  properly  so  called,  into  an  irre-  ^^^v  J-'  }^- 
gular  special  limitation.  ^ 


[  176  J        II.  S.  VI.]  AN  ORIGINAL  VIEW        [§353—355. 

The  reason        The  true  reason,  it  is  conceived,  why  the  interest  353 

A\  hy  the  in-  of  the  prior  devisee,  in  such  cases,  is  a  vested  intcr- 
terest  of  the  est,  is  this:  The  condition,  as  already  observed  with  regard 
priordevisce,  iq  cases  where  there  is  no  devise  over,  is  of  such  a  form,  that 
in  cases  fall-  j|-  j-j-j^y  fairly  be  regarded  as  a  condition,  in  the  widest  sense 
ingwitjunthc  of  the  term,  of  that  kind  which  in  a  preceding  page  is  called 
aboNcriile,  13  ^^^  indirect  special  or  collateral  limitation,  amounting  to  the 
a  ves  e  in-  gj^,^^g  ^g  jj-jg  ^vords,  if  he  should  continue  to  live  till,  or  if  he 
'  should  not  die  before,  he  attains  the  age  of  21  years,  and 

ce  '5  4-4d.  similar,  in  legal  character,  to  the  indirect  special  or  collateral 
limitation,  "to  i^.,  if  she  shall  continue  a  widow."  And  as  it 
See  §  200-1.  is,  in  its  own  nature,  capable  of  this  construction,  the  rule 
which  requires  an  interest  to  be  construed  as  vested,  if  pos- 
sible, rather  than  contingent,  at  once  steps  in,  and  imposes 
[  177  ]  upon  the  Court  the  duty  of  holding  that  the  devisee  takes  an 
immediate  vested  interest,  subject  to  devestment. 

The  devise  over  is  not  in  the  slightest  degree  in-  354 

strumental  in  aiding  the   Court  in  construing  the 
prior  interest  as  vested;  much  less  does  it  constitute  the  sole 
reason  of  this  construction. 
Cases  where      There  are,  however,  two  cases  in  which  it  has  355 

the  prior  dc-  been  decided,  that  a  vested  interest  was  taken  by 
visec  was  the  prior  devisee,  where  the  expressions  used  were  not  "if," 
held  to  take  or  "in  case,"  or  "provided,"  but,  "when"  he  shall  attain 
a  vested  in-  21,  or  "at"  21 ;  which  were  expressions  that  are  not  capa- 
terest  on  ac-  ble  of  being  construed  as  limitations;  (See  §  34 — 42,  298 — 
count  of  the  300),  and  where  there  was  nothing  but  the  devise  over  which 
devise  over,  could  justify  the  Court  in  construing  the  interest  of  the  prior 

devisee  to  be  immediately  vested. 
Dne  (\.  Hunt      -^  testator  devised  to  J.  M.,  when  he  attained  21,  to  hold 
V.  Moore,  14  ^^  him  his  heirs  and  assigns;  but  in  case  he  should  die  be- 
Kast,  601.      fore  he  attained  21,  then  he  devised  to  his  brother  when  he 
attained  21,  to  hold  to  him  his  heirs  and  assigns.     It  was 
held,  on  the  authority  of  Broornfidd  v.  Crowder,  and  other 
cases,  that  J.  M.  took  an  immediate  vested  interest,  subject 
to  be  devested  upon  his  dying  under  21. 
/>oc  d.  -^"^  where  a  testator  devised  his  estates  to  J.  R.,  for  life  ; 

Roake  v.       and,  on  his  decease,  to  and  among  his  children,  equally,  at 
Nowell,  I      the  age  of  21,  and  their  heirs,  as  tenants  in  common  ;  but  if 
Mau.  &  Sel.  only  one  child  should  live  to  attain  such  age,  to  him  or  her, 
327;  Ran-    and  his  or  her  heirs,  at  his  or  her  age  of  21.     And  in  case 
doll  d.  IJoe    J,  /?.  should  die  without  lawful  issue,  or  such  issue  should 
V.  Roake,  5   die  before  21,  then  over.     Lord  Ellenborough,  C.  J.,  said,  he 
Dow.  202.     could  see  nothing  in  tliis  devise  to  distinguish  it  from  Broom- 
field  v.  Crowder^  and  Doe  v.  Moore.    And  it  was  held  by  the 
House  of  Lords,  in  affirmance  of  the  judgment  of  the  Court 
of  King's  Bench,  that  the  children  of  J.  R.  took  an  immedi- 
ate vested  remainder,  subject  to  be  devested  in  the  event  of 
their  dying  under  21. 


II.  8.  vi.]      OF  EXECUTORY  INTERESTS.  [§35G.        [   177  ] 

356  It  is  witli  the  most  unfeigned  diffidence,  and  with  But  these 

the  greatest  rehiclance,  that  the  author  ventures  to  cases  are  not 
question  the  soundness  of  these  decisions.     But  still  he  can-  to  be  relied 
not  refrain  from  lumibly  suggesting,  that  in  deciding  these  on. 
cases,  upon  the  supposed  authority  of  Edwards  v.   Hum-    , 
7nond,  and  liroomfiddv.  Croivder,l\\e  learned  Judges  were 
deciding  them  upon  the  authority  of  cases  from  which  they  [   178] 

most  materially,  though  perhaps  only  technically,  differed  ; 
and  that  these  decisions  ought,  at  the  farthest,  to  be  regarded 
as  authorities,  in  the  determination  of  future  cases,  where 
the  terms  of  the  will  are  precisely  the  same.  And,  in  fact, 
it  may  be  questioned,  whether  they  ought  not  to  be  alto- 
gether disregarded,  as  founded  in  a  mistaken  view  of  pre- 
vious cases:  {ov,debile  fundamentiimfuIUt  opus.  Indeed, 
there  is  little  doubt,  but  that  sooner  or  later  they  will  be 
disregarded,  if  not  expressly  overruled  :  for,  experience  has 
shown,  »as  a  learned  author  observes,  with  respect  to 
another  point,  "  that  no  rule  of  construction,  however  sanc- 
tioned by  repeated  adoption,  is  secure  of  permanence, 
unless  founded  on  principle. "(«) 

When  we  consider  the   perplexing  state   of  uncertainty 
and  confusion,  in  which  the  preliminary  part  of  the  learning 
of  conditions  exists,  even  in  standard  text  books,  it  is  not 
surprising  that  the  existence,  in  a  particular  instance,  of  a 
condition  of  that  kind,  which  is,  in  a  preceding  page  of  this 
Essay,  termed  an  indirect  special  limitation,  should  escape  See  §  7,  3. 
the  notice  of  those  on  whom  the  interpretation  of  a  devise  See  §34,  37, 
devolved.     The  case  of  Randoll  v.  Doc  d.  Roake.  was  de-  42. 
cided  by  the  House  of  Lords,  in  affirmance  of  the  judgment 
of  the  Court  below;  but  then  it  is  most  material  to  observe, 
that  it  was  decided  upon   the  authority  of  Doe.  d.  Hunt  v. 
Moore,  as  well  as  the  other  cases,  so  that  that  decision  is 
hardly  to  be  regarded  as   an  independent  decision  by  the 
House  of  Lords  and  the   Court  below,  that  the  case   was 
analogous  to   Edwards  v.   Hammond,  and  Broomjidd  v. 
Crowder,ox  that  it  was,  independently  of  the  authority  of 
prior  decisions,  a  case  of  a  vested  interest ;  but  rather,  as  a 
decision  that  it  was  governed  by  the  next  preceding  case  of 
Doe  d.  Hunt  v.  Moure,  by  which  indeed   it  was  most  un- 
doubtedly governed,  if  any  weight  was    to  be  attached    to 
that  case.     If  the  case  of  Randoll  v.  Doe  d.  Roake  had 
preceded  the  case  of  Doe  d.  Hunt  v.  Moore,  there  would 
liave  been  a  far  greater  weight  of  presumption  in  its  fa- 
vour; but,  as  it  is,  the  author  humbly  submits  that  it  is  to 
be  regarded  as  but  little   more  than  a  following  of  a  bad        [   1"^  ] 
precedent. 

(a)  2  Jarm.  Powell  on  Devises,  733. 
Vol.   II.— 19 


[   179  ]        II.  S.  vi.] 


AN  ORIGINAL  VIEW 


[§357— 3G0. 


The  interest       It  is  ]ieiTectly  clear,  upon  principle,  and  firmly  357 

of  the  prior  established  by  authority,  that  the  expressions  tised 
devisee  must  in  these  cases  of  Doe  d.  Hunt  v.  Moore,  and  licuidoll  v. 
have  been  /)oe  d.  Boake,  would  have  amounted  to  conditions  prece- 
dent, suspending  the  vesting,  if  there  had  been  no  devise 
over.  Was,  then,  a  devise  simply  in  the  event  of  the  prior 
devisee  dying  before  21,  and  not  in  the  complex  event  of 
his  dying,  without  issue,  before  21,  sufficient  entirely  to 
alter  the  effect  of  the  preceding  words?  Quite  the  reverse. 
For, 


ing  of  the 
event  on 
■which  the 
prior  devise 
is  apparently 
made  contin- 
gent. 
1.  Such  a 
devise  over 
does  not  af- 


lield  contin- 
gent, if  thcTe 
had  been  no 
devise  over ; 
and  the  de- 
vise over 
could  not 
render  it  vested. 

II.  Effect  of       II.  A  devise  or  bequest  over  simply  in  case  of  358 

a  devise  over  the  non-happening  of  the  event  on  which  the  prior 
simplyonthe  devise  is  apparently  made  contingent,  (except  in  the  case  of 
non-happen-  ^  survivorship  clause  hereafter  mentioned,)  affords  some 
degree  of  presumption,  that  the  prior  devise  was  only  to 
vest  on  the  happening  of  that  event:  so  that,  though,  on  the 
one  hand,  it  is  not  sufficient,  of  itself,  to  show  that  the  prior 
devise  is  contingent ;  yet  it  may  be  called  in  aid  of  other 
circumstances  in  evidence  thereof. 

1.  In  support  of  this  proposition,  we  may  ob-  359 

serve,  on  the   one   hand,   that   where   a  testator 
devises  to  a  person  when  he  shall  attain  a  given  age,  with 
a  devise  over  in  case  of  his  death  before  that  age ;  and  the 
ford  a  neces-  testator  either  gives  the  whole  of  the  intermediate  rents  and 
sary  pre-       profits  to  the  prior  devisee,  or  leaves  him  entirely  unpro- 
sumption        vided  for  in  the  meantime ;  there,  the  devise  over  will  not 
that  such       indeed  afford  any  necessary  presnmption  that  the  testator 
prior  devise    intended  to  suspend  the  vesting  of  the  prior  interest  till  the 
is  contingent,  given  age.     For,  the  testator,  considering  it  most  probable 
that  the  prior  devisee  would  attain  the  given  age,  may  have 
intended  that  he  should  in  the  meantime  be  entitled  to  the 
rents  and  profits ;  and,  with  that  view,  may  have  intended 
that  he  should  have  a  vested  interest,  subject  to  be  devested 
in  the  event  of  his  dying  under  the  given  age.     And  if  the 
testator  has  expressly  given  him  the  whole   of  the  interme- 
diate rents  and  profits,  he  may  have  done  so,  either  from 
ignorance  of  the  fact  that  the  devisee  would  be  entitled  to 
them,  as  incidental  to  an  immediate  vested  interest,  or  from 
[   180  ]        an  excess  of  caution.     And  if,  on  the  contrary,  he  has  en- 
tirely omitted  to  provide  for  the  devisee  in  the  meantime, 
he  may  have  omitted  to  do  so,  because  intending  the  de- 
visee to  have  a  vested   interest,  he   knew  that  the  devisee 
would  be  entitled  to  the  intermediate  income,  as  incidental 
to  his  vested  interest. 
9..  But  still         liut  still,  on  the  other  hand,  though  such  a  de-  3G0 

it  affords        vise  over  does  not  furnish  a  necessary  presumption, 
some  pre-       it  does  so  far  furnish  some  degree  of  [)resumption,  that  the 


II.  8.  vi.]    OF  EXECUTORY  INTERESTS.    [§361,362.        [   ISO  ] 

testator  intended  to  suspend  the  vesting  till  the  given  age,  sumption 
that  there  is  a  greater  probability  that  such  was  his  inten-  thereol. 
tion,  where  there  is  such  a  devise  over,  than  there  is  where 
no  such  devise  over  exists.     Where  there  is  no  such  devise 
over,  it  may  with  great  reason  be  urged,  that  if  tlie  testator 
had  intended  the  devise  to  be  contingent  until  the  happening 
of  the  event  specified,  he  would  naturally  have  made  some 
provision  for  the  case  of  that  event  not  happening,  and  the 
consequent  failure  of  the  interest  dependent  on  the  happen- 
ing of  tliat  event ;  and  therefore,  that  the  absence  of  any 
such  provision  furnishes   a   presumption  that  he  intended 
such  interest  to  be  immediately  vested  in  right,  though  not  Sec  §  79-81. 
to  be  vested  in  possession  or  enjoyment,  till  the  happening 
of  the  event  specified,  or,  if  vested  in  possession  or  enjoy- 
ment, to  be  subject  to  devestment  on  its  not  happening.  Sec  §  97-«. 
Whereas,  if  there  is  a  devise  over  simply  on  the  non-hap-  See  §  3G4-5. 
pening  of  the  event  on  which  the  prior  devise  is  apparently 
made  contingent,  that  argument  in   favour  of  tiie  devisee 
taking  a  vesting  interest  is  excluded.     In  such   case,  the 
testator  expressly  gives  the  property  to  another  on  the  non- 
happening  of  the  event;  and  therefore,  so  fc\r  from  there 
being  any  reason  to  think  that   he   considered   the   prior 
interest  to   be  vested,  as  we  have  seen  there  would  be  if 
there  were  no  devise  over;  it  is  prima  focie  rather  to  be 
inferred,  that  he  intended  the  prior  interest  to  be  contingent; 
and  considering  it  to  be  so,  he  added  a  provision  for  the 
case  of  the  non-happening  of  the  event,  and  the  failure  of 

tlie  prior  interest. 
361  But,  even  admitting  that  such  a  devise  over  af-  q,.^  ^^  ^U 

fords  no  reason  whatever  to  suppose  tiiat  the  prior  events,  it  af- 
interest  is  contingent,  it  certainly  affords  no  reason  whatever  fords  no 
to  suppose  the  prior  interest  to  be  vested;  for,  if  the  testator  ground  for 
were  desirous  of  preventing  an  intestacy,  or  of  excluding  supposing 
the  residuary  devisee  from'the  property  comprised  in  the        [   ISl    ] 
prior  devise,  in  case  of  the  non-happening  of  the    event  such  prior 
specified,  he  must,  in  order  to  accomplish  that  object,  make  devise  to  be 
a  devise  over,  to  take  clfcct  in  case  of  the  event  not  hap-  vested. 
pening,   wheiher   the  prior   interest    were   unquestionably 
vested,   or    unquestionably   contingent;    and   consequently 
such  devise  over  amounts  to  nothing  more  than  a  further 
disposition,  designed  as  a  provision  for  the  case  of  the  non- 
happening  of  the  event  specified,  and  not  in  any  way  tend- 
ing to  explain  the  nature  of  the  prior  interest,  as  regards 
vesting,  unless,  as  we  have  already  observed,  it  be  to  atford 
some  presumption  that  such  prior  interest  was  intended  to 

be  contingent. 
362  The  proposition  in  support  of  which  these  ob- 

servations arc  made,  is  borne  out  by  authority. 


[  ISl  ]        II.  S.  vi.] 


AN  ORIGINAL  VIEW 


[§362 


Skey  V.  A  testator  gave  his  personal  estate  to  trustees,  upon  trust 

Barnes,  3  to  pay  the  interest  to  his  daughter  E.  S.,  for  her  Wfe;  and, 
Meriv.  335.  after  her  decease,  to  divide  the  principal  among  the  children 
of  his  daughter,  and  the  issue  of  a  deceased  child,  as  she 
should  appoint;  and,  in  default  of  appointment,  to  be 
equally  divided  between  them  ;  the  portions  of  the  sons  to 
be  paid  at  21,  and  the  portions  of  daughters  at  21  or  mar- 
riage; but  in  case  there  should  be  no  such  issue  of  Jiis 
daughter,  or  all  such  issue  should  die  without  issue  before 
their  portions  should  become  payable,  then  over.  E.  S. 
left  several  children  surviving  her,  one  of  whom  afterwards 
died  unmarried,  under  21.  Sir  W.  Grant,  M.  R.,  held,  tliat 
the  shares  vested  immediately,  subject  to  he  devested  ;  that 
the  contingency  had  not  happened  on  which  they  were  to 
be  devested;  and  consequently,  the  siiare  of  the  deceased 
child  passed  to  her  personal  representative.  His  Honour 
said,  that  a  devise  over  of  the  entirety  might  be  called  in  aid 
of  other  circumstances  to  show  that  no  interest  was  intended 
to  pass,  but  that  ^it  was  not  alone  sufficient  for  that  pur- 
pose,(/^)  and  that  though  Scoft  v.  Bargeman,  2  P.  W.  69, 
wouid  seem  to  prove  tiie  contrary,  yet  he  doubted  whether 
the  Reporter  had  correctly  stated  the  reason  on  which  the 
decision  was  grounded. 
[   182  ]  On  the  other  hand,  where  residuary  real  and  personal  es- 

Judd  V.  tate  was  given  by  will  to  trustees,  upon  trust  to  pay  the  in- 

Judd,  3  come  of  one  third  part  to  the  testator's  daughter  S.  J.,  for 
Sim.  525.  life ;  and,  upon  her  decease,  to  stand  seised  or  possessed  of 
Hunter  v.  the  said  one  third  in  trust  for  the  child  or  children  of  S.  J., 
Jwrfd,4Sim.  if  more  than  one,  share  and  share  alike,  and  to  be  paid, 
455.  assigned,  and  transferred  to  them,  upon  their  respectively 

attaining  25;  but  in  case  S.  J.  should  leave  but  one  child 
her  surviving,  then,  the  whole  of  such  one  third  should  go  to 
such  only  child,  upon  his  or  her  attaining  25,  and  be  trans- 
missible to  his  or  her  heirs,  executors,  or  administrators  ; 
and  in  case  ^S*.  J.  should  leave  no  child  her  surviving,  or  such 
child  should  not  attain  25,  then,  to  his  two  other  daughters, 
or  the  survivor,  and  their  or  her  children  as  therein  men- 
tioned. The  other  two  thirds  were  limited  in  a  similar 
manner  to  the  other  two  daughters,  except  that  the  words, 
"and  to  be  paid,  assigned,  and  transferred  to  them,"  were 
not  inserted  in  the  limitations  in  favour  of  the  children  of  the 
other  two  daughters;  and  the  words,  "and  be  transmissible 
to,"  were  not  introduced  before  the  words,  "  his  or  her  heirs, 
executors,  or  administrators,"  in  the  limitation  in  favour  of 
an  only  surviving  child  of  the  second  daughter.  And,  in 
default  of  issue  of  his  three  children  who  should  attain  25, 
then  his  trustees  should  stand  seised  or  possessed  in  trust  for 


(h)  See  Deane  v.  Test,  and  Blease  v.  Burgh,  supra. 


II.  8.  vi.]     OF  EXECUTORY  INTEPxESTS.         [§3n2a.        [  1S2  ] 

his  real  and  personal  representatives.  Then  power  was 
given  to  the  trustees  to  apply  all  or  any  part  of  the  income 
for  the  benefit  of  any  child  or  children  who  should  be  under 
25.  Sir  L.  Shadwell,  V.  C,  held,  that  the  gift  to  the  chil- 
dren of  *S'. ./.  was  void  for  remoteness.  His  Honour  observed, 
that  the  gift,  in  case  ,V.  ./.  should  leave  one  child  only  her 
surviving,  was  clearly  contingent  on  that  child  attaining  25; 
and  the  same  construction  must  be  put  upon  the  gill  in  casLj 
she  should  have  more  than  one  child;  and  when  the  be- 
quests in  favour  of  the  children  of  the  other  two  daughters 
were  considered,  the  question  was  placed  beyond  all  doubt. 
This  decision  not  being  deemed  satisfactory,  because  certain 
cases,  and  particularly.  Farmer  v.  Francis.,  2  Sim.  &  Stu. 
505,  had  not  been  cited,  the  point  was  again  argued,  and  ad-  ' 
ditional  cases  were  cited.  But  his  Honour  observed,  that 
they  did  not  bear  any  resemblance  to  the  present  case;  [  183  ] 
because  they  were  cases  of  one  single  gift  only :  whereas, 
in  this  case,  the  testator's  meaning  could  not  be  ascertained 
without  taking  into  consideration  the  whole  will.  And  he 
then  showed  that  the  second  clause  giving  the  property  to  an 
only  surviving  child  of  *S'.  J.,  and  the  gift  over  to  the  sur- 
viving daughters  and  their  children,  and  the  gift  over  of  the 
entirety,  as  well  as  other  parts  of  the  will,  completely  con- 
trolled the  first  clause,  and  made  it  evident,  that  the  children 
did  not  take  vested  interests  before  they  attained  25. 
362a  III.   Where,  indeed,  real  or  personal  estate  is  III.  Devise 

given  to  a  class  of  persons  on  their  attaining  a  cer-  oyer  to  sur- 
tainago,  with  a  clause  of  survivorship, providing,  that  in  case  vivors  of  a 
of  the  death  of  any  of  them  under  thai  age,  the  share  of  him,  class  affords 
her,  or  them  so  dying,  shall  go  to  the  survivors  or  survivor;  some  pre- 
the  existence  of  such  clause  of  survivorship  affords  some  pre-  sumption  ol 
sumption  in  favour  of  holding  the  interests  of  the  class  to  be  ^^^  '"S* 
vested  before  the  given  age,  inasmuch  as  if  they  were  contin- 
gent,that  clause  would  be  superfluous.  "But  still  this  presump- 
tion is  of  a  very  low  degree  :  for,  the  clause  may  have  been 
added  from  excess  of  caution  or  from  inadvertence.     At  all 
events,  the  presumption  thereby  afforded  is  insufficient  to 
overcome   the   force,  or  to   change   the   sense,   of  express 
words  of  a  known  legal  import. 

A  testator  devised  a  freehold  estate  to  his  wife,  during  Russell  v. 
her  widowhood;  remainder  to  his  nephew,  for  life;    re- Buchanan,2 
mainder  to  the  children  of  his  nephew,  in  fee,  as  tenants  in  Cromp.  & 
common.     And,  by  a  codicil  of  even  date  with  the  will,  he  Macs.  561; 
directed,  that  neither  his  nephew  nor  any  issue  of  his  ne-  S.  C.  7  Sim. 
phew  should,  by  virtue  of  his  will,  take  a  vested  interest  ^-S. 
unless  and  until    they  should  respectively  attain  21;  and 
that  in  case  of  the  death  of  any  such  children   under  21, 
their  shares  should  go  to  the  survivors  upon  their  respec- 
tively attaining  21.     The  nephew,  who  became  the  heir  at 


[  1S3  J        II.  S.  vi.]  AN  ORIGINAL  VIEW  [§363—365. 

law,  attained  21,  married,  and  died,  leaving  five  infant 
children,  having  made  his  will,  wherehy  he  devised  the 
premises  to  certain  other  persons.  The  Barons  of  the  Ex- 
chequer certified  that  he  took  a  fee,  as  heir  at  law,  and  that 
the  infant  children  took  nothing.  The  children  being  dis- 
satisfied with  this  certificate,  applied  to  the  Vice-chancellor, 
r  IS  1  1  ^'''  ^-  Shad  well,  that  the  opinion  of  another  Court  of  Law 
^  ^  ^  might  be  taken.  And  it  was  argued,  that,  according  to  the 
construction  adopted  by  the  Court  of  Exchequer,  the  sur- 
vivorship clause  would  be  superfluous;  for  if  the  shares  did 
not  vest  in  the  children  until  21,  there  could  be  nothing  to 
go  over  in  the  event  of  their  dying  under  21  ;  and  therefore 
that  the  word  "  vested"  meant  "  absolute  and  indefeasible." 
But  His  Honour  said,  that  the  rule,  in  construing  instruments, 
is  to  give  to  the  words  their  natural  legal  import,  although 
thereby  other  words  may  be  rendered  useless ;  and  that  the 
interests  of  the  children  were  contingent  on  their  attaining 
21,  especially  as  the  survivorship  clause,  though  super- 
fluous according  to  that  construction,  ended  with  the  words 
"upon  their  respectively  attaining  21." 
IV  Wherea      IV.  Where  the  event  on  which  the  prior  devise  363 

prior  devise  is  apparently  made  contingent,  is  the  attainment  of 
is  apparently  a  certain  age,  and  there  is  a  limitation  to  the  issue  of  the 
made  contin-  prior  devisee,  in  case  of  his  death,  under  that  age,  leaving 
gent  on  the  issue ;  with  anotlier  limitation  over,  in  case  of  his  death, 
attainment  of  under  that  age,  without  issue  ;  similar  observations  may  be 
acertain  age,  made  with  regard  to  the  effect  of  these  limitations  over, 
and  there  is  to  those  which  have  already  been  made  with  respect  to 
a  devise  over  the  case  of  a  limitation  over  simply  on  the  non-happening 
on  death  ^f  the  event  on  which  the  prior  devise  is  apparently  made 
under  that      contingent. 

age  without        y    jg,jj  where  a  testator  devises  or  bequeaths  364 

issue,arter an  ^^^^  ^^  personal  estate  to  a  person  "when,"  or  "as 
intermediate  ^^^^  ^^„  j^^  ^^^^j^  ^^^^j^^^  ^^^  ,,^^^„  ^^  ^  upon,"  or  "  from  and 
devise  to  tne  ^^^^^„  ^.^  attaining  a  given  age,  with  no  limitation  to  his 

V^Tvh  ^^^^®'  ^"  ^'^^^  °^  '^'^  ^^^^^^  '^"^^"^  *'^'^^  ^^^  leaving  issue,  but 

V.    V here  a  ^^.^j^  ^  limitation  over,  in  case  of  his  death  under  that  age, 

^'^"J|g^^J^"°^  and  without  issue,  or  (which  amounts  to  the  same  thing) 

ni^adrwith  a  ^^'^'^  ^  limitation  over  in  case  of  his  death  under  that  age, 

similar  de-     which  is  only  to  take  eff"ect  if  he  has  no  heir,  or  for  defaidt 

vise  over, but  of  his  issue ;  in  such  case,  his    interest  is  vested  in   right, 

there  is  no     though  not  in  possession  or  enjoyment  before  the 

intermediate  age  specified.     In  some  of  these  cases,  the  interim  365 

devise  to  the  income  was  given  to  the  devisee,or  there  were  other 

issue.  words  rendering  it  probable  that  only  the  actual  possession 

See  6  79-81.  was  postponed.     But  it  is  conceived  that  such  a  limitation 

*  over  is  amply  sufficient,  of  itself,  to  show  that  the  devisee 

r   185  1        was  to  take  a  vested  interest  immediately;  because  the  estate 

is  not  to  go  over  if  he  dies  under  the  age  specified,  leaving 


II.  S.  vi.J     OF  EXECUTORY  INTERESTS.  [§3G5.        [   ISO  ] 

issue;  and  tliereforo  it  iniisi  liave  been  iiilonded  llint  he 
should  take  a  vested  interest,  in  order  that  his  issue  might  be 
let  in,  if  he  should  die  under  the  age  specified. 

A  testator  bequeathed  the  residue  of  his  personal  estate  Bhind  v. 
to  trustees,  upon  trust  to  apply  so  much  of  the  interest  and  ffil/imns,  .3 
dividends  as  might  be  necessary,  for  the  maintenance  and  ^^-^^  K- 411. 
education  of  the  children  of  his  daughter,  until  they  should 
respectively  attain  the  age  of  24  ;  and  tlien,  upon  trust  to 
pay  and  transfer  all  the  said  residue,  and  the  undisposed  of 
interest  and  dividends,  unto  and  amongst  all  her  said  chil- 
dren, wlien  and  as  they  should  respectively  attain  that  age  ; 
and  with  benefit  of  survivorship  between  them,  in  case  any 
or  either  of  them  should  die  under  that  age,  and  without 
leaving  lawful  issue;  with  a  limitation  over,  in  case  all  of 
tiiem  should  die  under  that  age,  and  without  leaving  lawful 
issue.  The  question  was,  whether  the  interests  limited  to 
the  children  were  not  too  remote.  Sir  John  Leach,  M.  R., 
held,  that  the  time  of  payment  alone  was  postponed ;  and 
that  the  children  took  a  vested  interest,  with  an  executory 
devise  over,  in  case  of  death  under  24,  without  leaving  issue  : 
because,  in  a  gift  of  that  nature,  he  observed,  the  question 
whether  the  time  of  vesting  is  postponed,  or  only  the  time 
of  payment,  depends  entirely  upon  the  whole  context  of  the 
will;  and,  in  that  case,  the  gift  over  was  not  simply  upon 
the  death  under  24,  but  upon  the  death  under  24,  without 
leaving  issue.  And  he  said  that  all  the  cases  upon  the  sub- 
ject, except  that  of  Bull  v.  Pritchard,  1  Russ.  213,  before  See  §  366. 
Lord  Gilford,  were  reconcileable  with  the  distinction  he 
took.  With  regard  to  that  case,  it  was  urged  at  the  Bar, 
that  the  implication  arising  from  the  peculiar  form  of  the 
limitation  over,  was  not  pressed  in  the  argument,  nor  noticed 
in  the  judgment;  and  that,  in  the  principal  case,  it  could  not 
be  supposed,  that  the  testator  intended  that  if  any  of  the 
children  died  under  24,  and  left  issue,  the  issue  should  be 
wholly  unprovided  for;  when  the  gift  over  was  not  to  take 
place  if  issue  was  left,  at  whatever  time  the  death  might 
happen. 

Again  ;  a  testator,  being  seised  of  an  undivided  third  in  Machin  v.  ^ 
lands  demised  to  him  and  two  others  their  heirs  and  assigns  Rei/noUts,  S 
during  the  lives  of  certain  other  persons,  devised  the  same  to         [   186  ] 
his  sister  and  nephew,  for  their  joint  lives,  and  to  the  sur-  R''oJ.  & 
vivor  during  his  or  her  life,  in  case  there  should  happen  to  ^'"g-  ^'^2. 
be  no  issue  living  ;  but  in  case  both  or  either  of  them  should 
leave  issue,  then  to  the  survivor,  one  moiety,  for  life,  and 
the  rents  and  profits  of  the  other  moiety  to  be  applied  for 
the  maintenance  of  the  children  of  the  sister  or  nephew  so 
dying  during  their  minorities;  and,  after  the  death  of  the 
survivor,  the  other  moiety  for  the  maintenance  of  his  or  her 
children  during  their  minorities;  and,  when  and  as  such 


[   18G  ]        II.  8.  vL] 


AN  ORIGINAL  VIEW 


[§365. 


Farmer  r. 
Francis,  2 
Bing.  151. 
and  2  Sim. 
&  Stu.  505. 


[    187   ] 


See  §  76. 

Murkin  v. 
Pfiillipiion, 
3  M.  &  K. 
257. 


children  of  the  sister  and  nephew,  if  any,  shoald  attain  21, 
then,  the  whole  was  given  to  them,  as  tenants  in  common  in 
fee  ;  and  if  bat  one,  to  such  only  child  in  fee  ;  and  in  case  the 
sister  and  nephew  should  both  die  without  leaving  issue,  or 
being  such,  they  should  die  mider  21,  and  without  issue, 
then  over.  The  Court  of  Common  Pleas  certified,  that 
E.  S.  71/.,  the  daughter  of  H.  M.  the  nephew,  took,  upon  the 
deatii  of  the  testator,  an  estate  in  fee  simple  in  remainder, 
during  the  lives  of  the  cestui  que  vies,  subject  to  be  devested, 
in  part,  by  the  birth  of  other  children  of  the  nephew  and 
sister,  or  eitlier  of  them,  and  determinable  altogether  in  the 
event  of  her  dying  in  the  lifetime  of  H.  M.,  or  under  age, 
without  leaving  issue. 

In  another  case,  a  testator  gave  his  residuary  real  and 
personal  estate,  in  trust  for  his  wife,  for  life ;  remainder  for 
liis  daughter  for  life ;  and,  from  and  after  their  decease,  in 
trust  for,  and  he  thereby  devised  unto  and  amongst,  all  and 
every  the  lawful  issue,  child,  or  children,  of  his  daughters, 
as  should  be  living  at  the  decease  of  the  survivor  of  them 
his  wife  and  daughter,  equally  amongst  them,  if  more  than 
one,  to  be  divided  share  and  share  alike,  when  and  as  they 
should  respectively  attain  24,  and  to  their  respective  heirs, 
executors,  administrators,  and  assigns,  as  tenants  in  common, 
and  if  only  one,  then,  the  whole  thereof  to  sucli  only  or  sur- 
viving child,  his  or  her  heirs,  executors,  administrators  or 
assigns,  upon  attaining  the  said  age.  But,  in  case  there 
should  be  no  such  issue  living  at  the  time  of  the  decease  of 
the  survivor  of  them  his  said  wife  or  daughter,  or  being 
such,  all  should  die  without  lawful  issue,  under  the  age  of 
24  years,  then  in  trust  for,  and  he  thereby  gave  the  property 
to  E.  and  T.  F.  in  fee,  as  tenants  in  common.  The  Judges 
certified,  as  to  the  real  estate,  that  the  children  of  the  testa- 
tor's daughter,  who  were  living  at  the  death  of  the  survivor 
of  the  wife  and  daughter,  took  estates  in  fee,  as  tenants  in 
common.  And  Sir  John  Leach,  V.  C,  held  that  they  took 
absolute  vested  interests  in  the  personal  estate. 

So  where  a  testator  gave  to  each  of  his  six  grandchildren, 
a  legacy  of  50/.,  when  the  youngest  should  come  of  age ; 
and  the  said  grandchildren  to  receive  the  interest  of  the  said 
50/.  until  the  youngest  child  should  come  of  age,  when  an 
estate  should  be  sold,  out  of  the  produce  of  which,  he,  in  a 
subsequent  part  of  his  will,  directed  the  legacies  to  be  paid. 
If  either  of  those  children  should  not  live  to  come  of  age, 
nor  have  an  heir  born  in  wedlock,  the  said  50/.  to  be  equally 
divided  among  the  surviving  children.  One  of  the  grand- 
children married  during  her  minority,  but  afterwards  attained 
21,  and  died,  leaving  a  child,  before  the  youngest  grandchild 
attained  that  age.  It  was  held,  that  she  took  an  immediate 
vested  interest  m  the  legacy.     Sir  John  Leach,  M.  R.,  said, 


II.  S.  VI.]     OF  EXECUTORY  INTERESTS.  [§365.        [  187  J 

"  In  this  case,  there  is  no  direct  gift  until  the  youngest  grand- 
child attains  tlie  age  ot"  21  years:  but,  inasmuch  as  interest 
on  the  legacy  is  given  in  the  meantinie  from  the  death  of 
the   testator,  this,  if  it  were  given  out  of  personal  estate, 
would  be  considered  as  an  immediate  vested  interest,  and 
will  be  so  considered  in  tlie  present  case,  if,  upon  the  whole 
will,  it  should  ap|)ear  that  the  legacy  does  not  sink  into  the 
land.     The  jiayment  of  these  legacies  might  well  have  been 
postponed  only  for  the  convenience  of  the  estate,  and  if  that 
were  so,  the  case  would  not  be  within  the  principle  that  the 
legacy  lapses  lor  the  benefit  of  the  kind.     There  is  more- 
over great  weight  in  the  argument,  that  the  legacy  would 
not  sink  into  the  land,  because  the  testator  has  directed,  that 
if  any  of  the  six  grandchildren  should  die  under  the  age  of 
21,  without  leaving  an  heir  born  in  wedlock,  the  legacy 
should  vest  in  the  survivors.     In  that  case,  the  testator  has 
declared,  that  the  legacy  shall  not  sink  into  the  land  ;  and, 
a  fortiori,  it  must  be  intended,  according  to  the  principle  of 
Lord  Hardwicke,  in  Lowlhcr  v.  Condon,  that  he  could  not 
mean  the  legacy  to  sink  into  the  land,  when  a  grandchild 
attained  21,  and  died,  leaving  a  child  born  in  wedlock." 
.     And  where  a  testator  devised  his  real  and  personal  estate        r  is8  ] 
to  trustees,  upon  trust,  as  to  a  certain  estate,  to  convey  and  Philips  v. 
assure  tiie  same  to  G.  H.  A.  when  and  so  soon  as  he  should  Williums,  5 
attain  21,  and  also  to  pay  to  G.  H.  ./?.  lOOOL  upon  his  at-  Sim.  44. 
taining  21.     But,  in  case  G.  H.  A.  should  die  without  issue  Phippsv. 
before  attaining  21,  then,  the  said  estate,  together  with  the  .Ackers,  H 
said  sum  of  7000/.,  was  to  sink  into,  and  become  part  of,  the  Clarke  Fin. 
residue.     And  he  gave  the  residue  to  another,  in  a  different  702. 
form  of  words,  which  were  held  to  create  a  contingent  in- 
terest, depending  on  the  attainment  of  the  age  of  24  years. 
Sir  L.  Shadwell,  V.  C,  on  the  authority  of  Broomficld  v. 
Croiuilcr,  Doc  v.  Moore,  and  Doe  v.  Nowell,  held,  that  G. 
H.  A.  took  an  immediate  vested  interest,  liable  only  to  be 
devested  ;  and  consequently  that  he  was  entitled  to  the  rents 
and  profits  of  the  estate,  though  he  had  not  yet  attained  21. 
The  case  was  carried  by  appeal  to  the  House  of  Lords  ;  but 
judgment  has  never  been  given,  the  parties,  it  is  understood, 
having  entered  into  an  arrangement.     But,  in  support  of  the 
view  of  the  case  which  the  Vice-Chancellor   took,  it  was 
urged,  both  before  him  and  in  the  House  of  Lords,  that  it 
was  manifest  that  the  testator  did  not  intend  the  property  to 
go  over,  if  G.  H.  A.  died  under  21,  leaving  issue.     That  the 
issue,  however,  could  not  take  except  through  him,  and  he 
must  be  seised  of  some  estate  which  they  could  inherit.   And 
that  it  was  necessary,  therefore,  that  G.  H.  A.  should  take 
an  immediate  vested  fee,  to  enable  him,  if  he  should  die 
imder  21,  to  transmit  the  pr()i)ertv  to  his  issue. 
Vol.  H.— 20 


[  188  ]        II.  S.  vi.] 


AN  ORIGINAL  VIEW 


[§366. 


Warier  v. 
Wurter,  2 
Bro.  6c  Biug, 
3-19. 


[   1S9  J 


VI.  Where 
the  attain- 
ment of  a 
certain  age 
forms  part  of 
the  descrip- 
tion of  the 
legatee  or 
devisee. 
Bull  V. 
Pritchard, 
1  Russ.213. 


And  so  where  a  testator  devised  lands  to  trustees  and  their 
heirs  and  assigns,  until  J.  W.,  the  son  of  his  sister,  M.  TV., 
should  attain  21,  and,  if  he  should  die  in  the  meantime,  until 
H.  J.,  second  son  of  il/.  IV.,  should  attain  21,  and,  if  H.  J. 
should  die  in  the  meantime,  until  the  daughter  of  M.  IV. 
should  arrive  at  that  age ;  upon  trust,  among  other  things, 
for  the  maintenance  and  education  of  J.  W.,  till  he  should 
arrive  at  21;  and,  when  J.  W.  should  atttain  that  age,  to 
pay  him  the  residue  of  the  rents,  if  any;  and,  if  J.  TV.  should 
die  before  21,  then  for  the  maintenance  and  education  of  H. 
J.,  till  he  should  arrive  at  21;  and,  when  H.  IV.  should  arrive 
at  that  age,  to  pay  him  the  residue  of  (he  rents,  if  any  ;  and, 
when  and  as  soon  as  J.  TV.  should  attain  21,  or,  in  case  of 
his  death,  when  and  as  soon  as  H.  TV.  should  arrive  at  that 
age,  or,  in  case  of  his  death,  when  and  as  soon  as  the  daugh- 
ter of  M.  TV.  should  arrive  at  21,  he  devised  the  premises  to 
the  trustees,  their  heirs  and  assigns,  to  the  use  of  J.  TV.  and 
his  issue  in  strict  settlement ;  and,  for  default  of  such  issue, 
to  the  use  of  H.  TV.  and  his  issue  in  strict  settlement;  and, 
in  default  of  such  issue,  to  the  use  of  the  daughter  of  M.  TV. 
and  lier  issue,  in  like  manner.  And  the  testator  directed, 
that  his  furniture  and  plate  should  remain  in  his  house  as 
heir  looms.  The  Court  of  Common  Pleas  certified,  that, 
upon  the  death  of  J.  TV.,  under  the  age  of  21  years,  M.  E. 
M.  TV.,  his  only  child,  became  entitled,  as  tenant  in  tail  male, 
of  the  real  estate,  and  as  absolute  owner  of  the  heir  looms ; 
and  that  she  became  so  entitled  immediately  upon  the  death 
oft/.  TV.;  and  that  the  personal  representative  oi  J.  Tf^.  was 
entitled  to  the  savings  of  the  rents  and  profits  accrued  in  the 
lifetime  of  J.  TV. 

VI.  But  where  the  attainment  of  a  certain  age  .366 

forms  part  of  the  original  description  of  a  devisee 
or  legatee,  (See  §  281 — 4)  the  vesting  is  suspended  till  the 
attainment  of  that  age,  even  though  the  limitation  over  is 
only  to  take  effect  in  case  of  his  death  under  that  age,  with- 
out issue. 

Leaseholds  and  residuary  personal  estate  were,  devised 
and  bequeathed,  in  trust,  after  a  life  interest  to  the  testator's 
daughter,  for  the  children  of  his  daughter  who  should  attain 
the  age  of  23,  share  and  share  alike,  with  benefit  of  survi- 
vorship, in  case  of  the  death  of  any  or  either  of  them  under 
that  age;  and,  in  case  there  should  be  but  one  child,  then, 
intrust  for  such  only  child;  and,  in  case  there  should  be  no 
such  child  or  children,  or,  laeing  such,  all  of  them  should  die 
under  the  age  of  23  years,  without  lawful  issue,  then  upon 
trust  for  the  testator's  brother  and  sisters.  The  testator's 
daughter  had,  at  the  time  of  his  decease,  an  only  daughter, 
who  was  then  about  15  years  of  age,  and  died  under  the 
age  of  23  years,  without  issue.     It  was  held,  that  the  attain- 


II.  8.  vii.]     OF  EXECUTORY  INTERESTS.        [§3G6a.        [  189  ] 

mciit  of  23  years  was  made  a  condition  precedent  to  the 
vesting  of  any  interest  in  the  cliildren  ;  so  that  the  vesting 
of  the  interests  of  any  unborn  cliildren  might  not  take  place  [  190  ] 
till  more  than  21  years  after  a  life  in  being;  that  the  Court 
could  not  distinguish  between  children  born  in  the  life-time 
of  the  testator,  and  those  who  were  or  might  be  born  after- 
wards; nor  could  it  (inalify  the  words,  "in  case  there  should 
be  no  such  child,"  by  adding  the  words,  "living  at  the  death 
of  the  tenant  for  life,"  the  testator's  daughter;  and  therefore 
all  the  limitations  after  her  death  were  void  :  the  limitation 
to  the  children  was  void,  because  it  was  to  vest  on  too 
remote  an  event ;  and  the  bequest  over  to  the  brother  and 
sisters  of  the  testator  was  void,  because  it  was  to  take 
effect  on  one  of  two  conditions;  and  the  first  of  those  con- 
ditions could  never  take  place,  since  there  had  been  issue ; 
and  the  second  required  the  occurrence  of  an  event  which 
was  too  remote,  namely,  the  children  dying  without  issue, 
under  23. 

SECTION  THE  SEVENTH. 

Of  the  Effect  of  Subsequent  Explanatory   Words. 

366a  An  interest  which,  according  to  the  form  of  its 

limitation,  is  most  undoubtedly  a  vested  interest, 
may  be  rendered  contingent  by  subsequent  explanatory 
words,  so  long  as  they  afford  a  necessary,  though  not  per- 
haps an  obvious,  inference,  that  such  interest  was  not  in- 
tended to  be  a  vested  interest. 

A  testator  devised  real  estate,  after  the  decease  of  his  Critchett  v, 
daughter,  to  her  second,  third,  fourth,  and  every  younger  Taynton,  1 
child  or  children,  as  tenants  in  common  ;  but,  in  case  iiis  Russ.  &  M. 
daughter  should   die  leaving  no    issue,  or  if  his  daughter's  541, 
second,    third,   fourth,  and   every    other   child   should    not 
attain  his,  her,  or  their  respective  age  or  ages  of  21  years, 
and  should  not  be  married  before  such  age  with  the  consent 
of  his  the  testator's  son  and  daughter,  and  the  survivor  of 
them,  then  he  devised  his  estate  over.  He  then  directed,  that 
the  consent  should  be  testified  in  a  particular  maimer;  and 
added — "  otherwise  such  child  or  children  shall  not  have  or 
receive   any  benefit   from   this   my  will."     The   devise    to 
them  as  tenants  in  common  would  have  given  them  a  vested  See  §  97-8. 
interest  immediately,  subject  to  be  devested  by  the  opera-  See  §  148-9. 
tion  of  the   conditional  limitation,   in   the   event   of  their 
dying  under  21  without  having  been  married  with  consent.        [   191   ] 
But  the  subsequent  words  prevented  them  from  taking  a 
vested  interest  immediately  ;    because,  from    such   interest 
they  would  be  entitled   to  maintenance,  and  would  conse- 
quently  take  a  benefit  under  the   will,  even   though   they 
might  marry  belbre  21  without  consent,  or  die  before  that 


[   191   ]         II.  8.  viii.] 


AN  ORIGINAL  VIEW 


[§367,  368. 


age   unmarried.     The   subsequent  words  served   lo  render 
the   hmitation    to   the   children  dependent,  for   its  vesting, 
See  §  13.       upon  tiie  event,  as  a  condition  precedent,  of  their  attaining 
21,  or  marrying  with  consent  before  21. 

SECTION  THE  EIGHTH. 

Of  the  Effect  of  an  Allowance  for  Maintenance. 

I.  We  have  seen,  that,  in  general,  a  gift  of  the  367 
whole  intermediate  inconie,  for  tiie  maintenance 
or  benefit  of  the  person  to  whom  real  estate,  or  personal 
estate  not  arising  from  charges  on  land,  is  devised  or  be- 
queathed, on  the  attainment  of  a  certain  age,  is,  in  conse- 
quence of  the  strong  leaning  in  favour  of  vesting,  construed 
a  sufficient  indication  of  immediate  vesting,  where  there  is 
no  limitation  over  in  case  of  the  death  of  the  party  under 
that  age. 

II.  But,  where  there  is  such  a  limitation  over,  368 
the  indication  of  vesting  furnished  by  the  gift  of 
the  whole  intermediate  income,  is  so  far  countervailed  by 
the  limitation  over,  as  not  to  be  sufficient  evidence  of  vest- 
ing.* 

A  testatrix  gave  the  interest  of  her  residuary  estate  to  her 
four  sisters,  during  their  lives;  and  directed,  that,  on  their 
deaths,  the  interest  of  their  respective  shares,  should,  at  the 
discretion  of  her  executor,  be  applied  to  the  maintenance 
and  education,  or  accumulated  for  the  benefit,  of  the  chil- 
dren of  each  of  them  so  dying,  until  such  children  should 
severally  attain  the  age  of  22  years,  when  they  were  to  be 
entitled  to  their  mother's  share  of  the  principal;  with  limi- 
tations over,  in  the  event  of  the  death  of  either  of  them 
under  that  age.  The  sisters  had  several  children,  born  in 
the  testatrix's  lifetime.  Sir  John  Leach,  M.  R.,  said :  "  I 
am  not  able  to  distinguish  this  case  from  the  residuary  gift 
in  Leakey.  Robinson.  ...  In  that  case,  Sir  William  Grant 
[  192  ]  proceeds  upon  this  principle — that  the  prescribed  time  can- 
not be  considered  as  marking  only  a  time  of  postponed  pay- 
ment; because,  there  is  no  antecedent  gift — no  gift  but  in 

the  direction  to  pay  at  the  particular  period If  the 

whole  interest  had  been  expressly  given  to  the  children  until 
they  attained  22,  I  do  not  agree  that  the  shares  of  the  chil- 
dren would  therefore  have  vested,  subject  to  be  devested. 
The  case  of  Batsford  v.  Kebbell,  which  is  referred  to  by  Sir 
William  Grant  in  Leake  v.  Robinson,  is  an  authority  direct- 
ly in  point  against  that  proposition.     Where  interim  interest 


I.  Where  the 
\vhole  inter- 
mediate in- 
come is 
given,  and 
there  is  no 
limitation 
over. 

See  §  328- 
338. 

II.  Where 
there  is  a  li- 
mitation 
over. 

Vaivdry  v. 
Geddes,  1 

Russ.  &i  M. 
203. 


*  But  see  Doe  d.  Dofhj  v.  Ward,  stated  §  331  ;  which,  however,  was  decided 
on  the  authority  of  Raridoll  v.  Doe  d.  Roake,  a  case  that  cannot  be  relied  on. 
(See  §  3.51-362.) 


ir.  8.  ix.]  OF  EXECUTORY  INTERESTS.  [§36.9,  369a.        [  192  ] 

is  »ivon,  it  is  presumed  tlio  testator  meant  an  inniiediatn 
gift;  because,  for  the  purpose  of  interest  the  particular 
legacy  is  to  be  immediately  separated  from  the  bulk  of  the 
property;  but  that  presumption  fails  entirely,  when  the  tes- 
tator has  expressly  declared  that  the  legacy  is  to  go  over,  in 
case  of  the  death  "of  the  legatee  before  a  particular  period. 
I  speak  here  of  gifts  of  personal  estate,  and  not  of  real 
estate.  The  language  of  this  will  gives  an  equal  interest  to 
all  the  children  of  the  sisters,  whether  born  before  or  after 
the  death  of  the  testatrix. — The  statute  of  accumulation, 
(39  &  40  Geo.  III.,  under  or  by  analogy  to  which,  it  was 
contended,  that  the  accumulation  might  be  good  for  21 
years,)  was  passed  subsequently  to  the  death  of  the  testa- 
trix, and  can  have  no  eflect  upon  this  will.  My  opinion, 
therefore,  is,  that  the  gifts  over  to  the  children  of  the  sisters, 
whether  born  before  or  after  the  death  of  the  testatrix,  not 
being  to  take  etloct  until  the  age  of  22,  are  too  remote  and 

void." 
369  III.  If  a  part  only  of  the  intermediate  income  is  III.  Where 

given  for  the  maintenance  or  benefit  of  the  person  part  only  of 
to  whom  such  a  devise  or  bequest  is  made,  this  furnishes  no  the  interme- 
presumption  in  favour  of  vesting:  on  the  contrary,  as  the  d late  income 
testator  expressly  provides  a  less  sum  for  his  support,  than  is  given. 
he  would  be  entitled  to  by  mere  consequence  of  law,  if  his 
interest  were  vested  ;  there  is  a  presumption  against  vesting, 
rather  than  for  it. 

SECTION  THE  NINTH.  f  193  ] 

Of  the   Effect  of  a   Power  of  Appointment  over  Real 

Estate. 

369a  "Where  real  estate  is  subjected  to  a  power  of 

appointment  in  the  first  taker,  with  remainders 
over  in  default  of  such  appointment ;  the  power  does  not 
suspend  the  vesting  of  the  remainders  over,  but  such  remain- 
ders vest  subject  to  be  devested  by  the  exercise  of  the 
power,  whether  the  power  is  a  power  of  appointing  any 
estate  or  interest  generally,  or  whether  it  is  expressly  and 
restrictively  a  power  of  appointing  in  fee.(«) 

(a)  See  Fearne,  226 — 233;  and  Cunningham  v.  Moody,  1  Ves.  Sen.  174  ; 
and  Doe  d.  Willis  v.  Martin,  4  D.  &  E.  39,  as  there  stated ;  overruling  the 
opinion  of  the  Chief  Justice  in  Leonard  Lovie's  Case,  10  Co.  Rep.  85  ;  and 
of  Lord  Ilardwickc  in  Walpule  v.  Lord  Conway,  Barn.  Ch.  Rep.  153.  See 
also  Smith  v.  Lord  Camelford,  2  Ves.  .Tun.  698  ;  and  Mavndrdl  v.  Maun- 
drell,  7  Ves.  567,  10  Ves.  246. 


[   193  ]        II.  8.  X.] 


AN  ORIGINAL  VIEW         [§370—373. 


SECTION  THE  TENTH. 

Of  the  Effect  of  a  Power  of  ^Sppoinlment  over  Personal 

Estate. 

I.  Gifts  to  a        I.  "Where,  by  will  or  settlement,  legacies  or  370 

class  sul)ject  portions  are  directly  given  to  a  class  of  individuals, 
tea  power  ot^ subject  to  a  power  of  appointing  the  property  among  them 
appointing      generally,  the  persons  answering  the  description,  as  they 
among  them  come  in  esse,  during  the  life  of  the  donee  of  the  power,  take 
generally.      vested  interests,  in  equal  shares,  subject  to  be  devested  only 
as  regards  the  amount  of  their  respective  shares,  by   the 
exercise  of  the  power;  or,  in  the  case  of  any  one  or  more  of 
them  who  happen  to  die  in  the  lifetime  of  the  donee  of  the 
power,  subject  to  be  devested,  as  regards  the  share  or  shares 
of  the  person  or  persons  so  dying,  by  an  instrument  in  exer- 
cise of  the  power,  appointing  the  wliole  fund  among  the 
survivors.     So  that, 

1.  If  no  valid  appointment,  or  merely  an  ap-  371 
valid  ap-  pointment  of  a  part  of  the  property,  is  made,  the 
pointmcnt  is  fund,  or  so  much  of  it  as  is  not  effectually  appointed,  belongs, 
made,  or  in  equal  proportions,  to  the  legatees  or  donees  living  at  the 
only  a  par-  death  of  the  donee  of  the  power,  and  to  the  personal  repre- 
sentatives of  those  who  happen  to  be  then  dead. 

2.  But,  on  the  other  hand,  if  the  power  is  pro-  372 
perly   exercised,   the  share  or  shares   of  one   or 
more  of  them  may  be  partially  devested  and  diminished,  in 


194  ] 

^Vhere  no 


tial  appoint- 
ment. 

2.  Where  a 
valid  ap- 


made  of  the 
whole 


pointment  IS  favour  of  the  others  or  other  of  them,  by  the  exercise  of  the 
power;  and  in  case  of  the  death  of  any  one  or  more  of 
them  in  the  lifetime  of  the  donee  of  the  power,  he  may 
appoint  the  whole  fund  among  the  survivors,  so  as  entirely 
to  devest  the  share  or  shares  of  the  person  or  persons  so 
dying,  (a) 
Il.Wherethe      II.  And,  where  the  power  is  not  a  mere  power  373 

power  autho-  of  appointing  to  the  class  generally,  but  authorizes 
rizes  a  selec-  the  donee  thereof  either  to  appoint  to  all  or  to  select  some  of 
tion,  and  them  in  exclusion  of  others;  (as  where  it  is  a  power  of 
there  is  a  appointing  to  such  of  them  as  he  shall  think  proper ;)  and 
limitation  in  \\^qxq  is  alimitation  to  the  whole  class  in  default  of  appoint- 
defauUofap- j^gj^j.  |.j^g„  ta,ke  vested  interests,  in  equal  shares,  but  the 
pointment. 


(a)  Sec  1  Rop.  Leg.  by  White,  537 — 541,  and  cases  there  stated;  viz., 
Malini  V.  Keighley,  and  Malim  v.  Barker,  2  Vcs.  Jan.  333,  500,  and  3 
Ves.  150;  Bristow  v.  PFarde,  2  Ves.  .Tun.  336;  Wilson  v.  Pigolt,  2  Ves. 
Jun.  351.  The  same  learned  author  also  refers  to  Witts  v.  Boddington,  3 
Bro.  C.  C.  95,  ed.  by  Belt ;  Robinson  v.  Smith,  6  Mad.  194 ;  Gordon  v.  Levi, 
Ambl.  3G4 ;  Doe  v.  Martin,  4  T.  R.  89,  64  ;  Smith  v.  Camelford,  2  Ves. 
Jun.  698 ;  Vanderzee  v.  Adorn,  4  Ves.  771  ;  Butcher  v.  Butcher,  9  Ves. 
382  ;  1  Ves.  &  Bea.  78,  99 ;  S.  C.  1  Scho.  &  Lefroy,  293 ;  Vane  v.  Lord 
Diingannon,  2  Scho.  &  Lefroy,  118. 


II.  9.]        OF  EXECUTORY  INTERESTS.  [§371—376.        [   191  J 

share  of  each  is  subject  to  a  partial   or  total  devestment 
in  favour  of  the  others. 

374  HI.  But,  ''where  legacies  or  portions  are  given  III.  U'hfre 
to  such  of  a  certain  class  of  individuals  as  a  |)arlicu-  the  gift  is  to 

lar  person  shall  apf)oint  ;  and  there  is  no  limitation  to  any  such  of  a 

of  them  in  default  of  appointment ;  the  legacies  or  portions        [   1^5  ] 

will  necessarily  be  contingent  until  the  donee  of  the  power  class  as  a 

shall  have  exercised  it,  so  as  to  designate  and  ascertain  the  pf^rson 

individuals  who  are  to  (akc.(Z>)  ^'^^"  ^P', 

point,  and 

there  is  no 

limilation  in 

♦  default  nfap- 

pointment. 

CHAPTER  THE  NINTH.  [  196  ] 

CERTAIN  CASES  OF  INTERESTS  UNDER  LIMITATIONS  OF  THE 
WHOLE  OR  OF  THE  IMMEDIATE  PART  OF  A  REVERSION, 
DISTINGUISHED  FROM  CONTINGENT  REMAINDERS  OF  THE 
THIRD  CLASS,  AND  FROM  SPRINGING  INTERESTS. 

375  I.  Where  a  person  takes  a  life  estate  under  one  I.  Where  a 
instrument,  and  by  a  subsequent  instrument,  a  life  limitation  is 

estate  is  created  in  favour  of  another  person,  with  a  remain-  '"  ^'^^^  ^f^cr 
der  over  after  the  death  of  both  of  these  persons;  in  such  the  death  of 
case,  the  remainder  over  is  a  grant  or  devise  of  the  reversion  ^  person  who 
or  of  the  immediate  part  of  the  reversion,  being  limited  to  "^^  ^  '  ^ 
take   effect   in    possession    immediately    after   the   regular  ^^^J^^^^."^"^^^'" 
expiration  of  the  life  estate  created  by  the  previous  instru-  i,-,st,.^,„^(,„f 
ment,  and  of  the  other  life  estate  created  by  the  subsequent  ^^^^j  ^^^^i^  ,|'_ 
instrument.     Although,  if  the  existence  of  the  first  of  these  ^jtjition  is  a 
life  estates  had  not  been  known,  the  remainder  over  would  limitation  of 
have  justly  been  considered  to  be  a  contingent  remainder  the  whole  or 
of  the  third  class.  the  iinmcdi- 

"Thus,  where  ./?.  made  a  feoffment  to  the  use  of  himself  ate  part  of 
for  life,  and,  after  the  death  of  ^.  and  M  his  wife,  to  the  use  the  rever- 
of  B.,  eldest  son  of  .^.,  for  his  life ;  this  was  held  a  contin-  sion,  instead 
gent  remainder  in  B.     But  as  it  afterwards  appeared,  that,  of  a  contin- 
by  a  former  deed,  M.  had  an  estate  for  life  ;  Lord   C.  J.  gent  remain- 
Hale  held,  that  it  was  not  a  remainder,  but  a  conveyance  der  of  the 
of  the   then   subsisting   reversion   expectant  on  the  death  [J"™  elass, 
^r   M f..\  »^ee  vj  159, 

of  J\I.{a)  isr    irq 

376  II.  Where  an  estate  is  limited  to  a  person  after  ^°"'  \"'^' 

'or  instead  of 

{!>)  See  1  Rop.  Leg.  by  White,  541—543 ;  and  Buke  of  Marl- 
borough V.  Lord  Godolpldn,  2  Vcs.  Sen.  61,74,  Sl,^as  there 
stated.  The  same  learned  author  also  refers  to  2  Ves.  Sen.  208  ; 
Ambl.  365  ;  and  1  Vcs.  Sen.  210. 

(fl)  Weal  V.  Lower,  PoUexf.  63  ;  as  stated,  Fearnc,  303. 


a  limitation 


[   if}6  J        II.  9.]  AN  ORIGINAL  VIEW        [§377—379. 

of  a  spring-  the  death  of  another  who  takes  a  hfe  estate  under  a  pre- 
ing  interest,  vious  instrument ;  this,  of  course,  is  a  grant  or  devise  of 
[  197  ]  the  reversion,  or  of  the  immediate  part  of  the  reversion: 
See  §  169.  but,  yet,  if  the  existence  of  such  hfe  estate  were  not 
See  §  117-9.  known,  it  would  be  properly  considered  to  be  a  springing 

interest. 
Observations      It  will  be  obvious  from  these  distinctions,  that  377 

grounded  on  wherever  an  interest  is  postponed  till   after    the 
the  foregoing  death  of  a  person  who  takes  no  life  interest  under  the  same 
distinctions,    instrument;  in  judging  of  the  limitations  contained  in  such 
instrument,  it  is  necessary  to  inquire  whether  or  not  such 
person    takes   a   life   interest   under   any  previous   instru- 
ment. 

III  Where  a  ^^^-  ''Where  an  estate  tail  general  is  limited  to  378 
limitation  is'  ^  person  by  one  instrument,  and  then,  by  a  subsc- 

to  take  effect  qnent  instrument,  an  estate  is  limited  to  take  to  effect  on  an 
on  an  indefi-  indefinite  failure  of  his  issue  generally;  or,  where  an  estate 
nite  failure  tail  restricted  to  a  certain  description  of  descendants,  is 
of  issue  who  limited  to  a  person  by  one  instrument,  and  then,  by  a  dif- 
are  all  in-  ferent  instrument,  an  estate  is  limited  to  take  effect  on  an 
heritable  indefinite  failure  of  his  issue  of  the  same  description  ;  in 
under  estates  either  case  the  limitation  in  the  subsequent  instrimaent  is  an 
tail  created  inniiediate  grant  or  devise  of  the  reversion  or  of  the  imme- 
by  a  previous  (ji^te  part  of  the  reversion,(6)  though,  if  the  existence  of  the 
instrument;  p,-evious  estate  tail  were  not  known,  it  would  be  rightly 
and  such  h-  considered  as  an  executory  grant  or  devise  of  a  springing 
raitation  is  a  j^tgrggt,  and  therefore  as  void  for  remoteness.  (§  706,  714.) 
limitation  of 
the  whole  or  the  immediate  part  of  the  reversion, 

IV  Wherea  ^^-  But,  where  an  estate  is  created  out  of  a  379 
limitation  is    reversion  expectant  on  the  expiration  of  an  estate 

to  take  effect  tail  limited  by  a  previous  instrument;  and  such  estate  so 
on  an  indefi-  created  out  of  the  reversion,  is,  in  reality  and  not  merely 
nite  failure  of  apparently,  limited  to  take  effect  on  an  indefinite  failure  of 
issue,  some  issue  generally,  or  issue  of  a  given  description,  and  that 
of  whom  are  failure  could  or  might  not  take  place  till  a  period  subse- 
not  inherit-  quent  to  the  regular  expiration  of  the  estates  tail,  in  conse- 
able  under  quence  of  all  such  issue  not  being  inheritable  under  such 
such  estates  estates  tail ;  such  limitation  on  an  indefinite  failure  of  issue 
tail;  and  jg  g^  limitation  of  a  springing  interest  out  of  the  reversion, 
such  limita-  and  therefore  void  for  remoteness.  As  *=  where  estates  tail 
tionisahmi- ^^jg  are  limited,  by  marriage  settlement,  to  the  first  and 


terest 

See§  117,  125,  706;  714 


(0)  See  Fearne,  449. 


11.  9.]  OF  EXECUTORY  INTERESTS.         [§380.        [  l^S  J 

his  issue  generallyfc)  or  liis  issue  male;  and  ''not  merely 
on  failure  of  their  issue  male,  or  on  failure  of  his  issue  male, 

in  the  alternative. (t/) 
3S0  An  exception  occurs,  however,  where   the  pos-  Exception, 

sible  interval  between  such  an  indefinite  failure  of  wliercthe  in- 
issue  and  the  rei^ular  expiration  of  such  estates  tail,  may  be  terval  maybe 
filled  up  by  implying  an  estate  tail,  so  as  to  support  the  sub-  filled  up  by 
sequent  limitation  on  such  an   indefinite  failure  of  issue,  as  implication. 
a  remainder  created  out  of  the  reversion.  See  §  159. 

But  there  cannot  be  such  an  implication  where  the  limi-  Where  such 
tation  on  failure  of  issue  is  by  devise,  and  the  person  whose  implication 
failure  of  issue  is  spoken  of,  neither  takes  any  estate  under  does  not 
the  will,  nor  is  the  heir  apparent  or  heir  presumptive  of  the  arise, 
testator.     Nor  can  it  exist  where  the  person  whose  failure  ^^c  §  585-9. 
of  issue  is  spoken  of,  is  the  devisor  himself;  because  he  is 
dead  wlicn  the  will  takes  effect. 

A  testator  having  a  reversion  expectant  upon  a  life  estate,  Bankcs  v. 
in  his  wife,  under  his  marriage  settlement,  and  upon  inter-  Holme,  l 
ests,  under  limitations,  wliich,  being  only  to  his  sons  in  tail  ^^uss.  394. 
male,  with  remainder  to  his  daughters  in  tail  general,  would 
not  have  carried  the  estate  to  the  female  issue  of  the  sons, 
made  his  will,  whereby,  after  reciting  that  he  was  seised  of 
the  reversion  in  fee  expectant  upon,  and  to  take  effect  in 
possession  immediately  after,  tlie  decease  of  his  wife,  in  case 
there  should  be  no  child  or  children  of  his  wife  by  liim,  or, 
there  being  such,  all  of  them  should  happen  to  depart  this 
life  without  issue,  of  and  in  divers  messuages,  he  proceeded 
to  devise  the  same,  in  case  he  should  die  without  leaving 
any  children,  or  child,  or,  there  being  such,  all  of  them  shall 
happen  to  depart  this  life  without  issue.  The  Vice-Chan- 
cellor  decided,  that  the  devise  of  the  reversion  was  void,  as 
being  too  remote.  And  this  decision  was  affirmed  by  the 
House  of  Lords.  The  reasons  in  support  of  the  decree  of 
the  Vice-Chancellor  were  the  following:  "  Because,  if  the  r  199  1 
devises  in  question  were  valid  in  law,  they  must  take  effect 
either  as  immediate  devises  of  the  reversion,  or  as  executory 
devises.  But,  as  immediate  devises  of  the  reversion,  they 
cannot  take  effect ;  since  they  are  not  limited  to  take  effect 
till  after  the  failure  of  the  whole  of  the  testator's  issue,  or, 
at  least,  of  his  whole  issue  by  liis  then  wife,  some  of  which 
issue,  that  is  to  say,  the  daughters  of  his  sons  and  their  de- 
scendants, could  take  no  estates  under  the  testator's  mar- 
riage settlement.  The  devises,  therefore,  are  not  so  limited 
as  to  take  effect  at  all  events  immediately  upon  the  expira- 
tion of  the  particular  estates  limited  by  the  settlement :  nor 

(<•)  Lady  Lanesborough  v.  Fox,  Cas.  temp.  Talb.  262  ;  as  slated  and  com- 
mented on,  Fearne,  448 — 9. 

{d)   Sanfnrd  v.  /%,  3  Bar.  &  Aid.  654. 
Vol.  II.— 21 


[  199  ]        II.  9.]  AN   ORIGINAL  VIEW  [§381. 

can  any  limitations  be  implied  in  favour  of  the  testator's 
issue  by  his  then  wife  unprovided  for  by  the  settlement; 
since  it  appears,  from  the  recital  of  the  settlement  contained 
in  the  will,  that  the  testator  conceived  that  all  his  issue  by 
his  then  wife  were  provided  for  by  the  settlement,  and  he 
therefore  cannot  be  taken  to  have  intended  to  have  provided 
for  any  such  issue  out  of  the  settled  estates  by  his  will. 
And,  as  executory  devises,  the  devises  in  question  cannot 
take  effect  ;  because  they  are  limited  to  take  effect  after  a 
general  failure  of  the  testator's  issue,  or,  at  least  his  issue  by 
his  then  wife,  and  are  therefore  void  in  law,  as  being  too 
remote.  The  testator,  according  to  the  plain  construction  of 
his  will,  does  not  profess  to  devise,  nor  is  it  in  the  least  pro- 
bable that  he  could  have  intended  to  devise  his  estates  in 
the  county  of  York  to  his  collateral  kinsmen,  in  exclusion  of 
any  of  his  own  issue  ;  and  therefore  it  must  be  understood, 
according  to  the  literal  language  of  the  will,  that  the  de- 
visees were  not  to  take  until  failure  of  all  the  testator's  issue 
by  his  then  wife  or  any  future  wife  (or  at  least  all  his  issue 
by  his  then  wife),  as  well  those  provided  for,  as  those  un- 
provided for  by  the  settlement." 
V.  Where  a       V.  From  cases  of  this  kind,  however,  we  must  381 

limitation  is  be  careful  to  distinguish  those  where  estates  tail 
made  of  the  are  created  by  a  previous  instrument,  and  the  ancestor,  to 
reversion,  eo  whose  children  such  estates  tail  are  given,  devises  the  rever- 
nomine,  on  sion,  eo  nomine,  on  an  indefinite  failure  of  issue  generally, 
[  200  ]  or  of  issue  of  a  certain  description,  some  of  whom  are  not 
an  indefinite  inheritable  under  the  entail  previously  created  ;  and  there  is 
failure  of  y^Q  intent  manifested,  in  any  other  part  of  the  will,  to  post- 
issue,  some  pQi^e  ^^e  devise  to  such  indefinite  failure  of  issue.  In  such 
of  whom  are  ^^^^^^  jj-,g  Revise  will  be  held  to  be  an  immediate  devise  of 
not  inherit-  ^^  ^^^^  ^^  ^^^  reversion  ;  because,  as  the  testator  first  devises 
able  under  ^j^^  reversion,  which  is  a  sufficient  description  in  itself,  and 
such  estates  ^^^^  devise  would,  of  course,  in  itself,  pass  an  interest  which 
h  fmita-  would  take  effect  in  possession  immediately  after  the  regu- 
tion  is'al'imi-  ^^''  expiration  of  the  previously  created  estates;  the  effect  of 
taUon  of  the  ^^at  devise  is  not  destroyed  by  words  which  may  be  regarded 
whole  or  the  as  merely  superadded  to  the  principal  description,  for  the 
immediate  purpose  of  explaining  what  was  the  nature,  as  he  erro- 
part  of  the  neously  supposed,  of  the  reversion  to  which  he  was  entitled, 
reversion.       and  which  he  intended  to  devise. 

See  §  169.  An  estate  at  C.  was  settled  on  Jl.,  for  life;  remainder  to 
E^erlon  v.  his  first  and  other  sons,  in  tail  male  ;  remainder  to  Ji.,  in  fee. 
Jones, 3Sim.  A.  devised  as  follows  :  "  As  to  the  reversion  and  inheritance 
409.  of  the  freehold  estate  at  C.  purchased  by  me  in  pursuance 

of  my  marriage  articles,  in  case  of  failure  of  issue  of  my  body 
by  my  said  wife,  I  give  and  dispose  thereof  in  manner  fol- 
lowing; that  is  to  say,  I  devise  the  same  to  my  brother,  &c." 
The  estate  in  tail  male  in  the  first  and  other  sons  of  A.  being 


II.  y.]         OF  EXECUTORY  INTERESTS.  [§382.       [  200  ] 

determined,  the  heir  at  law  of  J].,  apprehending  that  the 
devise  was  void  for  remoteness,  contracted  to  seH  the  estate. 
The  Master  having  reported  in  favour  of  the  title  made  out 
under  tfie  heir  at  law,  the  purchaser  excepted  to  the  report, 
on  the  ground  thai  the  devise  was  good,  or  that,  at  least,  it 
was  doubtful  whether  it  was  not  good.  Sir  L.  Shadwell, 
V,  C,  said,  "  In  cases  like  the  present,  it  is  always  a  ques- 
tion, whether  the  testator  has  described  inaccurately  what 
he  meant  to  dispose  of,  or  has  made  the  contingency  a  part 
of  tlie  devise.  It  appears  to  me  that,  in  this  case,  the  testa- 
tor has  used  the  words,  "in  case  of  failure  of  issue  of  my 
body  by  my  said  wife,"  as  a  description  of  the  thing  he 
meant  to  dispose  of:  and  therefore,  if  I  were  compelled  to 
decide  the  point,  I  should  hold,  that  the  devise  in  question  is 
good  ;  and  consequently  I  cannot  force  the  purchaser  to  take 

this  title." 
382  VI.  Where  estates  tail  are  created,  by  a  deed  or        [  201   ] 

will,  in  favour  of  the  children  of  a  particular  mar-  VI.  Where  a 

riage,  and  then  the  ancestor  to  whose  children  such  estates  limitation  is 

tail  are  given,  makes  a  devise  of  the  hereditaments  so  en-  to  take  eflect 

tailed,  to  take  eflect  on  an  indefinite  failure  of  his  issue,  o"  ^"  '"'^^"" 

generally,  or  without  restriction  to  his  issue  by  such  mar- "'''^'^''".'■f^°' 

riaare,  oron  an  indefinite  failure  of  the  issue  of  his  sons, '^^"^'  ^ 
1    °  .  Ill  11      •  1  TIT    -out  restric- 

daughters,  or  children,  generally,  m  such  case,  it  his  wite  is  ^.^^  ^^  .^^^^ 

still  living,  by  whom  lie   had  the  children  who  take  the  ^^^  ,^       ^j^^^^ 

previous  estates  tail,  and  there  is  anything,  on  the  face  of  [^j.j^g^,.j^„g 

the  will,  to  show  that  he  contemplated  her  surviving  him,  ^^.j^^  are   °  ' 

(*"such  as  the  appointing  her  executrix,  or  making  any  dis-  alone inherit- 

position  in  her  favour,)  (e)  it  will  be  considered  that  he  had  able  under 

no  other  marriage  in  contemplation,  and  that,  consequently,  previously 

the  devise  is  a  devise  of  the  whole  or  the  immediate  part  of  created  es- 

the  reversion,  instead  of  a  limitation  of  a  springing  interest,  tales  tail,  but 

(See  §  169,  117,  125.)  yet  no  other 

inarriage 

was  contemplated,  and  therefore  such  limitation  is  a  limitation  of  the  whole  or  the 

immediate  part  of  the  reversion. 


(e)  Jones  v.  Morgan,  as  stated,  Fearne,  451.     Lytton  v.  Lytton,  4  Bro.  C, 
C.  441  ;  as  stated,  Fearne,  454,  note  (c). 


[  202  ]       II.  10.]  AN  ORIGINAL  VIEW         [§3S3— 387. 


CHAPTER  THE  TENTH. 

OF  LIMITATIONS  TO  THE  HEIR  OR  HEIRS  OF  A  LIVING  PER- 
SON, CONSIDERED  IN  RELATION  TO  THE  FOURTH  CLASS  OF 
CONTINGENT  REMAINDERS:    AND,  FIRST, 

OF  SUCH  LIMITATIONS,  WHEN  THEY  PRIMA  FACIE  FALL 
WITHIN  THE  DESCRIPTION  OF  THAT  CLASS,  BUT  IN  RE- 
ALITY DO  NOT  COME  WITHIN  IT  ;  THE  WORD  HEIR  MEAN- 
ING HEIR  APPARENT  OR  PRESUMPTIVE,  AND  THE  WORD 
HEIRS    MEANING    SONS,    DAUGHTERS,    OR    CHILDREN. 

Strict  sense    The  word  "heir,"  in  its  strict  legal  sense, denotes  383 

of  the  word    the  person  upon  whom  the  law  casts  the  inheri- 
heir.  tance,  on  the  decease  of  the  ancestor.     Hence  the  maxim 

A  remainder  is,  that  nemo  est  hseres  vivenlis;  and  consequently,  a  re- 
to  the  heirs  mainder  which  is  limited  to  the  heirs  of  a  living  person,  is  a 
of  a  living  remainder  limited  to  one  who  is  not  yet  in  existence  ;  since 
person  is  a  no  one  sustaining  the  legal  character  of  heir  of  a  certain  per- 
limitation  to  son,  can  be  in  existence  till  that  person's  death, 
a  person  not       ^jj^j  admitting  though  there  can  be  no  heir  till  384 

in  being,  or,   j|-jg  ancestor's  decease,  yet  the   person   who   will 
if  in  being,     eventually  be  heir,  is  in  being;  still,  it  is  uncertain  whether 
not  ascer-      ^^^  person  who  would  be  heir,  if  the  ancestor  were  to  die  at 
tamed.  ^  particular  time,  may  not  die  before  the  ancestor ;  or,  if 

such  person  is  only  heir  presumptive,  whether  he  may  not 
be  displaced  by  the  birth  of  a  nearer  relative ;  and  there- 
fore, the  person  who  will  eventually  be  heir,  is  one  who, 
even  if  he  is  in  being,  cannot  be  ascertained  till  the  moment 
of  the  ancestor's  decease. 
And  hence         Hence,  as  a  general  rule,  a  remainder  limited  to  385 

such  remain-  the  heir  or  heirs  of  a  living  person,  falls  within  the 
der  is  a  con-  description  of,  and  really  is,  a  contingent  remainder  of  the 
tingent  re-      fourth  class.     But, 

mamder  of         I.  There  are  cases  in  which  such  remainders  do  386 

[  203  ]        not,  in  reality,  within  the  description  of  the  fourth 
the  fourth       or  any  other  class  of  contingent  remainders,  ihow^h,  primd 
class.     But,  facie,  as  being  limited  to  the  heir  or  heirs  of  a  living  person, 
J.  Sometimes  they  seem  clearly  to  fall  within  it. 
it  does  not 
fall  within  the  description  of  that  class. 

l.Wherethe      1.  This  happens  where  the  same  persons  who  387 

word  heirs  is  are  designated  "  heirs,"  are,  in  another  sentence, 

used  for  sons,  referred  to  by  the  description  of  sons,  daughters,  or  children, 

daughters,or  the  testator  having  sons  or  children  at  the  time:  or  other 

children. 


11.11.]         OF  EXECUTORY  INTERESTS.    [388,389.        [203] 

expressions  are  added,  wliicli  show  that  the  testator  used 
tlie  term  "hens,"  not  in  its  teclniical  sense,  but  as  a  syno- 
iiynie  for  the  first  and  other  sons,  to  take  successive  remain- 
ders in  tail,  or  for  the  children,  to  take  as  joint  tenants  or 
tenants  in  common. 

Thus,  where  a  testator  devised  in  trust  for  the  mainte-  Doe  d.  Hah 
nance  of  .S'.  a  feme  covert,  and  the  issue  of  her  body  during  len  v.  Iron- 
the  life  of  S.;  and  after  her  decease,  in  trust  for  the  use  oi  monger,  :i 
the  heirs  of  the  body  of  .S'.,  their  heirs  and  assigns  for  ever.  East,  583. 
without  any  respect  to  seniority  of  age  or  priority  of  birth  ; 
and  in  default  of  such  issue,  then  over.     It  was  admitted 
that  the  remainder  was  legal,  while  the  preceding  estate 
was  equitable.     And  it  was  held,  that  S.  took  for  life  only, 
with  remainder  to  her  children  as  joint  tenants. 

388  2.  "Such  also  is  the  case  where  it  appears  from  2.  Where  the 
other  expressions,  that  the  testator  uses  the  term  word  heir  is 

"heir"  to  denote  the  individual,  who,  at  the  time   of  the  used  for  heir 
making  of  the  will,  is  the  heir  apparent  or  heir  presumptive  apparent  or 
of  a  particular  person.(«)  presumptive. 

389  II.  Again;  there  are  other  cases,  in  which  re-  II.  In  some 
mainders  to  tlie  heir  or  heirs  of  a  living  person,  do  other  cases, 

fall  within  the  description  of  the  fourth  class  of  contingent  the  remain- 
remainders,  but  yet,  in   consequence  of  the   application   of  <^cr  does  fall 
certain  rules  of  law,  they  constitute  exceptions  from  that        [  204  ] 
class  of  contingent  remainders.     The  cases  of  this  kind  are  within  the 
those  which  are  affected  by  the  rule  which  rendered  a  limi-  description 
tation  to  the  heirs  of  the  grantor  inoperative,  and  those  ^''  ""^  ^^^ 
which  are  governed  by  the  rule  in  Shelley^s  Case ;  which  ^*^"^"  "  ^f. 
form  the  respective  subjects  of  the  two  following  chapters.     \      '  ([q 

fourth  class 
of  contingent 
*  remainders. 


CHAPTER  THE  ELEVENTH.  [  205  ] 

FIRST  EXCEPTION  FUOM  THE  FOURTH  CLASS  OF  CONTINGENT 
REMAINDERS,  IN  THE  CASE  OF  AN  ULTIMATE  LIMITATION 
TO  THE   RIGHT   HEIRS  OF  THE   GRANTOR. 

In  the  preceding  chapter,  we  have  seen  that,  as  a  general 
rule,  a  remainder  limited  to  the  heirs  of  a  living  person,  falls 
within  tlie  description  of,  and  really  is,  a  contingent  re- 
mainder of  the  fourth  class. 

(fl)  BiirchcU  V.  Dunlant,  2  Vent.  311  ;  James  v.  liichanhon,  1  Bro.  Pari. 
Ca.  493  ;  Durbison  d.  Long  v.  liemtmont,  I  P.  VV.  229  ;  1  Bro.  Pari.  Ca.  489  ; 
and  Goodrig/it  d.  Broking  \.  IJ'liite,  2  Blac.  Rep.  1010;  as  stated,  Fearne, 
210—212. 


[  205  ]        II.  12.  i.]  AN  ORIGINAL  VIEW        [§390—394. 

Limitations        But,  prior  to  a  modern  statute,  "if  an  ultimate  390 

to  the  right  limitation  was  made  to  the  right  heirs  of  the  grantor, 
heirs  of  the  it  did  not  give  a  contingent  remainder  to  the  heir  at  law  as 
grantor  be-  ^  purchaser,  but  was  entirely  inoperative,  the  ultimate  in- 
fore  stat.  3  &  terest  remaining  in  the  grantor,  as  his  ancient  reversion,  and 
4  ^^  ill.  I\  .  passing  to  iiis  right  heirs  in  the  ordinary  course  of  descent.(a) 
c.  106,  This  exception  is  founded  on  reasons  similar  to  those  as- 

See  Sect.  III.  signed  in  the  next  chapter  for  the  exception  therein  dis- 
cussed. 
Enactment         By  the  stat.  3  &  4  Will.  IV.  c.  106,  s.   3,  it  is,  391 

ofstat,3&4  however,  enacted, that  "when  any  land  shall  have 
Will.  IV.  c.  been  limited  by  any  assurance  executed  after  the  31st  day 
106,  s.  3.  of  December,  1833,  to  the  person  or  to  tlie  heirs  of  the  per- 
son who  shall  thereby  have  conveyed  the  same  land,  such 
person  shall  be  considered  to  have  acquired  the  same  as  a 
purchaser  by  virtue  of  such  assurance,  and  shall  not  be 
considered  to  be  entitled  thereto  as  his  former  estate  or  part 
thereof." 


[  206  ]  CHAPTER  THE  TWELFTH. 

SECOND  EXCEPTION  FROM  THE  FOURTH  CLASS  OF  CONTINGENT 
REMAINDERS,  CREATED  BY  THE  RULE  IN  SHELLEy's  CASE, 
WHERE  REAL  PROPERTY  IS  LIMITED  TO  A  PERSON,  WITH 
REMAINDER  TO  HIS  HEIRS. 

A  remainder 

to  the  heirs  of  We  have  seen,  in  the  tenth  chapter,  that,  as  a  392 

a  living  per-  general  rule,  a  remainder  limited  to  the  heirs  of  a 

son  is  a  con-  living  person,  falls  within  the  description  of,  and  really  is,  a 

tingent  re-      contingent  remainder  of  the  fourth  class, 

mainder.  There  is,  however,  a  well  known  exception  to  this,  created 

But  an  ex-     ^    ^^le  rule  in  Shelley's  Case. 

ception  IS 

created  by  SECTION  THE  FIRST. 

the  rule  m 

Shelley's  The  Rule  in  Shelley's  Case  Stated. 

^^^,]    ,         In  Shelleifs  Case,  a  fine  was  levied  by  a  man  to  393 

^elley  s       ^^^  ^^^  ^^  himself  for  life,  remainder  to  the  use  of 
^^^*  the  heirs  male  of  his  body  and  the  heirs  male  of  the  body 

of  such  heirs  male,     1  Co,  Rep,  93. 
What  is  And  the  rule  called  the  Rule  in  Shelley's  Case,  394 

meant  by  the  is  a  rule  of  great  antiquity,  by  which  the  word 

{a)Fenwick  v.  Mitforth,  Moor,  284;  Earl  of  Bedford's  Case,  Moor,  718; 
and  Read  and  Morpeth  v.  Erington,  Cro.  Eliz.  321 ;  as  stated,  Fearne,  51. 


II.  12.  1.]  OF  EXECUTORY  INTERESTS.  [§395—397.        [  206  ] 

heirs,  in  remainders  to  the  heirs  of  a  tenant  for  Hfe  or  in  Rulein5'Ae/- 
tail,  is  construed  as  a  word  of  limitation,  and  which  was  ley's  Case, 
referred  to  by  the  defendant's  counsel  in  that  case,  to  show 
that  the  heirs  males  of  tlie  body  of  Edward  Shelley  did  not 
take  by  purchase,  but  by  descent. 

395  The  Rule  is  expressed  by  liim  in  the  following  The  Rule  as 
terms: — '•  It  i^yjule  of  law,  that  when  tlie  ances-  statff]  in 

tor  by  any  gift  or ^^^H9b|^  takes  an  estate  of  freehold,  Shellfijs 
and,  "in  the  same^^^^^'>rn^ance(«)  an  estate  is  limited,  Case, 
either  mediately  oHhT'diarfly,  to  his  heirs,  in  fee,  or  in        [  207  J 
tail,  that  always,  iii^|h  '-^^  the  heirs  are  words  of  limi- 
tation of  1'1™m(^,  and  not  words  of  purchase." 

396  ''Several  v-^T^r  cases  in  the  Year  Books  in  the  The  same 
time  of  Edwaf(Wl.,are  ref^ed  to  in  Lord  Coke's  rule  appears 

Report;    but   Mr.  Preston   observes,  Tlie  only  one  among  in  tlic  Pro- 
them'which  is  intelligible,  is,  that  of  the  Provost  of  Beverly,  vost  of  Be- 
wliich  arose  upon  a  fine  sur  graiii  et  render,  by  which  '^ejly  s 
lands  were  settled  upon  John  Sutton,  the  granting  party  in  ^^se. 
the  fine,  for  his  life  ;  remainder,  after  his  death,  to  John  his 
son,  and  to  Eline  his  wife,  and  the  heirs  of  their  bodies  be- 
gotten ;    and,  for  default  of  such  issue,  remainder  to  the 
right  heirs  of  John  the  father.     John  the  father  was  dead, 
and  John  the  son  and  Eline  were  also  dead,  without  issue. 
Richard,  another  so^  of  John  the  father,  entered,  claiming 
as  a  purchaser  under  the  limitation  to  the  right  heirs  of  his 
father.     Thorpe,  in  answer  to  the  plaintifi^'s  counsel,  ob- 
served, '•  Your  title  is  as  heir  to   your  lather ;    and   your 
father  had  the  freehold  preceding ;     .      .     .  and    the  re- 
mainder was  not  at  all  limited  io  you  hY  your  proper  name, 
but  as  he.irP     And,  for  these  reasons,  it  was  decided   that 
Richard  took  by  descent. (6) 

397  Such  is  the  rule  of  law  indirectly  pointed  out  in  Observations 
this  case,  and  formerly  stated  in  Shelley's  Case,  on  the  virtual 

from  wliich  it  has  received  its  name.     And  it  is  indispensa-  substitution 
bly  necessary  here  to  observe,  that  it  would  have  been  well  of  another 
if  the  profession,  when  they  have  considered  the  nature  and  rule, 
extent  of  the  Rule  in  Shelley's  Case,  had  always  really  con- 
sidered the  nature  and  extent  of  that  Rule,  as  pointed  out 
and  expressed  in  the  two  cases  above  mentioned,  instead  of 
laying  down,  or  presupposing  the  existence  of  a  Rule,  which, 
though  termed  the  Rule  in  Shelley's  Case,  is  in  reality  a 
translation  of  that  Rule  into  terms  of  a  far  different  and 
more    extensive    character;    embracing  cases,  where   the 
words    "issue,"    "children,"    "sons,"   and    "daughters," 
have  been  used  instead  of  the  word  "  heirs."     These  words 

(a)  See  Fearne,  71;  and  Doe  d.  Fonnercau  v.  Fonnereuu,  Doug.  Rep.  486, 
as  staled,  Fearne,  73. 

{b)  Prcs.  View  of  Rule,  50,  52. 


[  20S  ]       II.  12.  i.]  AN  ORIGINAL  VIEW        [§398—401. 

may  indeed  have  been  used  in  ignorance  as  synonymes  for 
the  technical   word  heirs;  but   still,  not  having  the  same 
technical  import  as  that  word,  they  have  been  differently 
construed. 
The  Rule  True  it  is  that  the  Rule  may  be  expressed  in  398 

may  be  dif-    different  and  in  more  or  less  precise  terms,  without 
ferently  destroying   its  identity.     And  \^^^a'^\  I^ord  Goke  himself 

stated,  with-  wording  it  in  different  ways,^JB|B|M^pctrts*of  his  com- 
out  losing  its  mentary.  Thus,  in  one  plaea^r^!lB|^P''here  the  ancestor 
identity;  as  taketh  an  estate  of  freehold,  ^fcaftcriMC inainder  is  limited 
it  is  by  Lord  (q  j^js  riaht  heirs,  the  fee  sinr-^«e.trA^  himself,  as  well  as 
uoKe.  if  it  had  been  limited  to  him  aip^dp^heirs  •:  for,  his  right 

heirs  are  in  this  case  words  of  limiyJTo'i  ^>f  estate,  and  not  of 
purchase. "(c)  Whila^  in  aijuu-oipabsage,  he  gives  the  same 
Rule  as  follows  : — Whensoever  the  ancestor  taketh  any 
estate  of  freehold,  a  limitation  after,  in  the  same  convey- 
ance, to  any  of  his  heirs,  are  words  of  limitation,  and  not 
of  purchase,  albeit  in  words  it  be  limited  by  way  of  remain- 
der."(^) 
Lord  Coke         But  amidst  this  variety  in  other  respects,  the  two  399 

retains  the      essential  requisites  pointed  out  by  the  counsel  in 
two  essential  the  Case  of  the  Provost  of  Beverly  and  in  Shelley'' s  Case, 
requisites       are  retained  by  Lord  Coke  ;  namely,  a  prior  limitation  of  the 
thereof.  freehold  to  the  ancestor;  and  a  subsequent  limitation  to  his 

"  lieirs,"  by  that  designation,  and  in  that  character. 
Another  It  is  the  design  of  the  present  chapter,  to  point  400 

statement  of  out  the  nature,  application,  and  reasons  of  the  Rule 
the  Rule.  referred  to  in  Shelley'' s  Case,  and  not  of  some  other  Rule, 
designated  by  that  name,  indeed,  but  being  in  fact  of  far 
greater  extent ;  and  in  pursuance  of  this,  the  author  ven- 
ttires  to  lay  down  that  Rule  in  terms,  which,  retaining  all 
the  essential  ingredients,  may  perhaps  serve  to  express  sub- 
stantially the  same  Rule,  in  a  somewhat  more  plain  and 
definite  manner,  and  in  such  a  way  as  to  exclude  certain 
cases  which  fall  within  the  terms  of  the  Rule,  as  laid  down 
by  the  counsel  in  Shelley''s  Case,  and  have  usually  been 
treated  as  exceptions  thereto,  but  which,  as  appears  from 
[  209  ]  the  Provost  of  Beverly^s  Case,  do  not,  in  reality,  come 
within  tlie  scope  or  meaning  thereof. 

The  Rule,  when  expressed  according  to  this  de-  401 

sign,  may  be  thus  stated:  When  a  person,  by  any 
deed  or  will,  takes  a  freehold  interest, and,  by  the  same  deed  or 
will,  a  remainder  of  the  same  quality,  as  legal  or  equitable,  is 
afterwards  limited,  whether  mediately  or  immediatelj^^to  his 
heirs  or  the  heirs  of  his  body,  '^by  that  description,  and  in 
that  character,(e)  or  to  his  heir  or  the  heir  of  his  body,  in  the 

(c)  Co.  Litt.  319  b.  {d)  Co.  Litt.  376  b. 

(e)  See  Fearne,  188,  194,  195,  197—199. 


II.  12.  ii.]  OF  EXECUTORY  INTERESTS.  [§401a— iO?.        [  209  ] 

singular  number,  Imt  as  a  nomen  coUertivum  in  the  sense 
of  heirs  or  heirs  of  the  body  ;  the  inlieriiauoe,  in  fee.  or  in 
tail,  is  executed  or  attaches  originally  in  the  person  to  whom 
the  freehold  is  hmiled,  as  if  it  had  been  limited  to  him  and 
his  heirs  general  or  special,  instead  of  attaching  originally 
in  the  individual  first  answering  the  description  of  his  heir 

general  or  special. 
401a  It  will  be^jpfcved,  that  •'limitations  of  subse-  Limitations 

queiit  intercljplflbi  are  not  by  way  of  remainder,  not  by  way 
such  as  conditional  llr  '  "Ws,  are  not  within  the  Rule.(/)  of  remainder 
The  Rule  arose  b(  ,  ^  limitations  were  allowed  ;  and  are  not  with- 

when  they  were  iii....aiiyo(i  by  way  of  use  and  devise,  the  '^  ^"^  '■"'^• 
Rule   was    not   held   to  .apply    to   them,  either  directly  or  See  §  148-9, 
by   analogy,  because  th%  were  not  within  the  reasons  of  149a,  117, 
the  Rule.'  '  l^Ta,  419- 

4o0. 

SECTION  THE  SECOND. 

The  Te)'7ns  and  the  Operation  of  the  Rule  explained.       Word  heir  or 

402  Apart  from  the  operation  of  the  Rule,  the  word    •,  u  '    r 
heir  or  heirs  may  be  either  a  word  of  purchase  or  ^^.i^^g^  ^j.  ^^ 
a  word  of  limitation.  .  .  ,     ,     .  limitation. 

403  Words  of  purchase   arc  those  winch  designate  definition  of 
the  first  purchaser  or  person  who  is  to  take,  and  wordsofpur- 

404  which  cause  an  interest  to  attach  in  him  originally,  chase. 
Words  of  limitation  are  words  which  serve  to  mark  Definition  of 

out  the  limits  or  quantity  of  an  estate,  and  its  course  of  de-  words  ofli- 
volution,  and  under  which,  in  the  case  of  an  estate  in  fee        [  210  ] 
or  in  tail,  the  heirs  do  not  take  originally,  but  derivatively  mitation. 

by  descent  from  their  ancestor.(</)  See  §  26-42. 

405  The  invariable,  proximate,  and  proper  operation  The  inva- 
of  the  Rule,  is,  merely  to  execute  the  subsequent  riable,  proxi- 

interest  in  the  ancestor  himself,  just  as  if,  in  addition  to  a  mate,  and 
prior  limitation  of  a  freehold  to  him,  there  were  a  proper  ope- 

406  subsequent  limitation  to  him  and  his  heirs  general  ration  of  the 
or  special.     But,  besides  this  operatioti,  it  has  also  ^"'^• 

an    occasional,  mediate,  and   indirect  effect  upon  the  prior  -Iheocca- 
estate  limited  to  the  ancestor,  by  creating,  in  certain  cases,  sional,  medi- 
such  a  connexion  between  the  two  interests,  as  to  let  in  the  ae,an    indi- 
application  of  the  doctrine  of  merger,  and  thereby  occasion  T^  ^  ^^ 
the  annihilation  of  the  prior  estate  of  freehold.  _ 

407  Under  the  Rule  in  Shelley's  C^SQ,  and  the  doc-  AJ'tt^'rent 

r  .u         1  .  •    .         .  •  .1  modes  m 

trine  of  merger,  the  subsequent  interest  is  executed     ,  ■  ,  ., 
,  .      ^  ="     '  T     T  -111      which  the 

in  the  ancestor  m  rive  ways:    I.   In  possession,  absolutely.  ^,^1^^^^^^^ 

II.   In  interest.     III.  In  possession,  subject  to  the  liability  interest  is 

of  afterwards  becoming  only  executed  or  vested  in  interest,  pxecuied  in 

the  ancestor. 

(/)  Fearne,  276.  (a)  See  Fearne,  79. 

Vol.   II.— 22 


[  210  ]        II.  12.  ii.] 


AN  ORIGINAL  VIEW         [§408—413. 


I.  In  posses- 
sion, abso- 
lutely. 


II.  In  inter- 
est. 


Tlie  inheritance  is  then  ab- 
ancestor. 
Jriing  between  409 

ince  hmited 
inch  interest  is  vested, 
ancestor  is  seised  of  an 


III.  In  pos- 

[  211    ] 

session,  sub- 
ject to  the 
liability  of 
afterwards 
becoming 
only  exe- 
cuted in  in- 
terest. 

IV.  In  pos- 
session to 
some  pur- 
poses only. 


Cases  to  be 
distinguished 
from  these. 


IV.  In  possession,  to  some  purposes  only.     V.  As  a  con- 
tingent remainder. 

I.  ^  If  the  subsequent  limitation  of  the  inheri-  408 
tance  follows  immediately  after  the  limitation  of 

the  freehold  to  the  ancestor,(6)  the  freehold  merges  in  the 
inheritance,  and  ''the  ancestor  becomes  seised  of  an  estate 
of  inheritance  in  possession. (/;) 
solntely  executed  in  possession 

II.  "  If  there  is  any  interest 
the  ancestor's  freehold  and  th^ 
to  his  heirs  general  or  special, (c^ 
the  freehold  cannot  merge,  but 
estate  of  freehold  in  possession,  and  of  an  estate  of  inheri- 
tance in  remainder. (c)  The  inheritance  is  then  executed  in 
interest  only,  in  the  ancestor. 

III.  The  inheritance  may  be  executed  or  vested  410 
in  possession,  subject  to  the  liability  of  afterwards 
becoming  only  executed  in  interest.  For,  *^if  there  are  in- 
terests intervening,  but  they  are  only  contingent,  the  freehold 
and  the  inheritance  are  united  and  executed  in  possession  in 
the  ancestor,  only  until  such  intervening  interests  become 
vested ;  and  then  open  and  separate,  in  order  to  admit  such 
intervening  interests  as  they  arise.(e) 

IV.  If  land  is  limited  to  two  persons  for  their  411 
lives,  and,  after  their  decease,  to  the  heirs  of  one  of 

tliem;  or  to  husband  and  wife,  and  the  heirs  of  the  body  of 
the  husband;  the  estates  in  tail  or  in  fee  are  executed  in 
possession  to  some  purposes  only.  For,  they  are  not  grant- 
able  away  from  or  without  the  freehold,  by  way  of  remain- 
der ;  and  yet  they  are  not  so  executed  in  possession  as  to 
sever  the  jointure,  or  entitle  the  wife  of  the  person  so  taking 
the  inheritance,  to  dower:  and,  in  the  above  case  of  a  limi- 
tation to  husband  and  wife  and  the  heirs  of  the  body  of  the 
husband,  *" recovery  against  him,  with  single  voucher,  will 
not  bar  the  issue  or  remainder ;  though  his  estate  has  been 
held  to  be  so  executed  in  possession,  that  his  feoffment  was 
a  discontinuance. (/■) 

And  *''so  where  land  is  limited  to  two  persons  of  412 

the  same  sex,  or  to  two  of  different  sexes  who  may 
not  lawfully  intermarry,  and  the  heirs  of  their  two  bodies; 
the  inheritance  is  executed  in  possession  sub  modo:{g)  and 
''  where  the  limitation  is  to  the  heirs  of  their  two  bodies,  they 
take  several  inheritances;  because  they  cannot  liave  issue 
between  them. (A) 

There  are  certain  other  cases  of  joint-tenancy,  413 

which  must  be  distinguished  from  these ;  namely, 


(ft)  Fearne,  28,  33. 
(/)  lb.  36. 


(c)  lb.  28,  32,  33. 
(g)  lb.  36. 


(e)  lb.  37. 
(h)  lb. 


II.  12.iii.]  OF  EXECUTORY  INTERESTS.  [§414— 419.        [  211   ] 

•  where  there  is  a  joint  Uniitalion  of  tlie  freehold  to  several, 
followed  by  a  joint  limitation  of  the  inheritance  to  them  in 
fee  simple-,  or  where  the  freehold  is  limited  to  baron  and 
feme  jointly,  and  a  remanider  is  limited  to  the  heirs  of  their 
bodies;  the  inheritance  is  then  executed  jointly  in 

414  possession. (/)  And  ''so  where  the  freehold  is  limited 

to  two  persons  jointly,  who  may  by  common  pos-        [  212   ] 
sibility  lawfully  intermarry,  and  who  may  therefore  have  a 
common  heir  betweeivtb^i,  and  a  remainder  is  limited  to 

tiie  heirs  of  Iflei^odies.(A') 

415  But,  '  where  tm  limitation  of  the  freehold  is  not 
joint,  but  successive  ;  as  to  one  for  life,  remainder 

to  the  other  for  life,  remainder  to  the  heirs  of  their  bodies; 
there,  it  seems,  the  ultimate  remainder  is  not  executed  in  pos- 
session, but  they  take  a  joint  remainder  in  tail.(/) 

416  And  '"if  land  is  limited  to  one  parent  for  life, 
remainder  to  the  heirs  of  the  body  of  baron  and 

feme;  this  is  no  remainder  in  the  tenant  for  life;  because 
the  freehold  is  limited  to  one  parent  alone,  and  the  person 
wiio  is  to  take  in  remainder,  must  be  heir  of  both  their 
bodies. (m) 

417  And  "a  limitation  to  a  woman  and  the  heirs  of 
her  late  husband,  on  her  body  begotten,  was  ad- 
judged to  give  her  no  more  than  an  estate  for  life.(/i) 

418  y.  °If  the  subsequent  limitation,  instead  of  being  v.  As  a  con 
unconditional,  as  supposed  in  the  preceding  cases,  tingent  re- 
is  expressly  limited  upon  a  contingency ;  still,  it  will  not  be  mainder. 

a  contingent  remainder  to  the  heir  general  or  special  as  a 
purchaser,  but  will  attach  originally  in  the  ancestor,  as  a 
contingent  remainder;  so  that  his  heir  can  only  take  by 
descent.  And  if  the  contingency  happens  in  the  lifetime  of 
the  ancestor,  the  inheritance  will  then  vest  in  him  either  in 
possession  or  in  interest,  according  to  the  first  two  rules.(o) 

SECTION  THE  THIRD. 
The  Grounds  of  the  Rule  explained. 

The  reasons  of  the  rule  wouldappear  to  be  these  : — 

419  I.  The  prevention  of  fraud  upon  feudal  tenure.        [  213  ] 
For,  "when  the  heir  came  in  by  descent,  and  was  I.  Prevention 

under  age,  the  lord  was  entitled  to  the  grand  fruits  of  mili-  ofl'ruudupon 

(i)  Fearne,  36—7.  (A-)  lb.  35.  (/)  lb.  36. 

(m)  Fcarnc,  38,  65 ;  and  Gossage  v.  Taylor,  Stiles  Rep.  325  ;  Lane  v.  Pan- 
nef,  1  Roll.  Rep.  230,  317,  438;  and  Frogmorton  v.  Wharrey,  3  Wils.  125, 
144  ;  as  there  stated. 

(h)  Mandci'ile's  Casp,  Co.  Lilt.  26  b ;  as  stated,  Fearne,  40. 

(o)  Fearne,  30,  32,  34. 


[  213  ]        II.  12.  ill.] 


AN  ORIGINAL  VIEW         [§420—422 


feudal 
tenure. 

II.  Preven- 
tion of  fraud 
upon  the 
specialty 
creditors  of 
the  ancestor. 


III.  Desire  of 

facilitating 

alienation. 


IV.  These 
reasons  in- 
volve 
another ; 


[  214   ] 


tary  tenure,  wardship  and  marriage ;  but  if  the  heir  took 
by  purchase,  then  the  lord  could  only  claim  the  trifling 
acknowledgment  of  a  relief.(r/) 

II.  ''The  prevention  of  fraud  upon  the  specialty  420 
creditors  of  the  ancestor,  who,  as  Mr.  Justice 
Blackstone  and  Mr.  Hargrave  have  observed,  would  have 
been  defrauded,  if  the  heirs  had  been  allowed  to  take  by 
purchase ;  as  the  land  would  not  have  been  assets  in  their 
hands  (Z»)  It  is  true  that  Mhis  r^em  fails  as  to  limitations 
to  heirs  special ;  since  estates  tailWferi^^not  subject  to  debt.(c) 
But  it  might  nevertheless  be  a  siracieAt  reason  for  the  rule 
as  regards  limitations  to  heirs  general. 

III.  But,  whatever  have  been  the  grounds  of  421 
the  rule  in  its  origin,  another  reason  subsequently 
existed,  as  an  inducement  to  the  preservation  of  the  rule 
from  legislative  abolition  and  judicial  discouragement,  after 
the  feudal  reason  had  ceased  with  the  feudal  system  itself; 
and  that  subsequent  reason,  is,  ''the  desire  to  facilitate 
alienation,  by  vesting  the  inheritance  in  the  ancestor,  in- 
stead of  allowing  it  to  remain  in  abeyance  until  his  de- 
cease.((/) 

IV.  But  these  reasons,  which  would  serve  by  422 
themselves,  to  stamp  the  Rule  with  the  character 

of  a  mere  prohibitory  Rule,  founded  in  policy,  do,  in  fact, 
when  closely  considered,  involve  other  reasons,  which  im- 
part a  different  and  mixed  character  to  the  Rule;  enabling 
us  to  regard  it  as  a  Rule  of  Construction,  as  well  as  a  Rule 
of  Policy;  and  furnishing  us  with  the  means  of  gaining 
more  definite  and  satisfactory  notions  of  its  nature,  extent, 
and  application. 

Why  should  such  a  mode  of  limiting  an  estate  have  been 
treated  as  a  fraud  ?  and  why  should  the  Rule  be  said  to 
have  been  adopted  for  the  prevention  of  fraud?  Does  not 
this  very  expression  indicate,  that  the  limitations  in  question 
would,  generally  and  in  the  main,  have  virtually  and  essen- 
tially accomplished  the  same  purpose  as  a  limitation  to  the 
ancestor  and  his  heirs,  or  the  heirs  of  his  body,  except  as 
regards  the  rights  of  certain  third  persons,  who  were  de- 
frauded by  a  variation  in  the  mode  of  constructing  such 
limitations  ?  If  such  limitations  were  essentially  different 
from  a  gift  of  the  inheritance  to  the  ancestor,  there  would 
have  been  nothing  which  could,  in  any  point  of  view,  or 
with  any  sort  of  propriety,  be  termed  a  fraud. 

It  is  allowed,  on  all  hands,  that  if  the  parties  chose  to  give 
the  heirs  an  estate  by  purchase,  they  could  do  so,  by  taking 
care  not  to  give  the  ancestor  an  estate  of  freehold.     There 


(a)  Harg.  Tracts,  566. 
(c)  Fearne,  87. 


(b)  Harg.  Tracts,  501,  566. 
(d)  See  Harg.  Tracts,  498,  500. 


II.  12.  iii.j  OF  EXECUTORY  INTERESTS.  [§423—425.        [  214  J 

was  no  rule,  in  such  a  case  as  this,  to  vest  the  inheritance  in 
the  ancestor  himself,  so  as  to  preserve  the  rights  of  the  lord, 
or  the   rights  of  tlie  creditors  of  the  ancestor.     Why  then  • 

should  the  heirs  have  been  prevented  from  taking  by  pur- 
chase, where  the  ancestor  took  an  estate  of  freehold  ?  Why 
would  tliis  be  a  fraud,  in  the  latter  case,  more  than  in  the 
former  ? 

To  account  for  this  diversity;  to  account  for  the  interpo- 
sition of  a  Rule  of  Polic^prohibiting  the  heirs  from  taking 
as  purchasers,  in  one  jfca^  while  no  such  Rule  was  inter- 
posed in  other  cases  equally  falling  wilhin  the  same  policy; 
we  are  driven  to  the  necessity  of  seeking  some  reason  from 

the  nature  of  the  limitations  themselves.     And  one  namely,  that 

423  such  reason  has  been  intimated  above  ;  namely,  the  two  limi- 
that  in  the  cases  falling  within  the  Rule,  the  two  tations would 

limitations  to  the  ancestor  and  to  his  heirs  or  the   heirs  of  generally 
his  body,  would,  generally  and  in   the   main,  have  virtually  «»d  in  the 
accomplished  the  same  purposes  as  a  gift  of  the  inheritance,  "''■i'"  have 
in  fee  or  in  tail,  to  the  ancestor  himself;  and  therefore,  the  viriually  ac- 
law  construed  those  limitations  to  amount  to  such  a  gift,  in  <^o'"pl'-^hed 
order  to  prevent  the  injury  which  the  lord  and  the  specialty  thesame pur- 
creditors  would  have  sustained,  if  parties  had  been  allowed,  P^*^  ^'^  ^§^!^ 
generally  and  in  the  main,  virtually  to  create  an  estate,  of  ^  ^  ^ '"^"' 
the  same  quantity,  and  the  same  alienable  and  transmissible  ''*"^^^°  '"® 
quality,  as  one  limited  to  the  ancestor  himself,  and  yet,  by  a 
particular  mode    of  limitation,  fraudulently  to   evade    the 
claims  of  the  lord  and  the  specialty  creditors  of  the  an- 
cestor. 

424  "  If  such  alimitation,"  observes  Fearne,(e)  "had        [  215  ] 
been  construed  a  contingent  remainder,  the  ances-  Illustration 

tor  might,  in  many  cases,  have  destroyed  it  for  his  own^^^his. 
benefit,  if  occasion  had  called  for  it ;  if  not,  he  might  have 
let  it  remain  to  his  heir,  in  as  beneficial  a  manner  as  if  it 
had  descended  to  him  ;  at  the  same  time  that  the  lord  would 
have  been  deprived  of  those  fruits  of  the  tenure  which 
would  have  accrued  to  liim  upon  a  descent." 

425  It  is  true  that  the  Rule  extends  even  to  cases.  Certain 
where  the  freehold  is  so  limited  that  it  may  deter-  objections 

mine  in  the  ancestor's  lifetime  ;  as  where  an  estate  is  limited  answered, 
to  the  ancestor  for  another's  life.  It  is  true,  also,  that  where 
the  inheritance  was  limited  to  his  lieirs  general,  different 
persons  might  sometimes  have  inherited  as  heirs  to  the  per- 
son first  taking  as  heir,  from  those  who  would  inherit  as 
heirs  to  the  ancestor  himself.  But  surely  it  would  be  a  suf- 
ficient reason  for  one  uniform  Rule,  that  limitations  to  the 
ancestor  and  his  heirs  general  or  special,  would,  as  already 


(e)  pp.  83,  84. 


[  215  ]        II.  12.  ill.]  AN    ORIGINAL  VIEW        [§426—428. 

observed,  generally  and  in  the  main,  have  virtually  accom- 
plished the  same  purposes  as  a  gift  to  the  ancestor  himself. 
In  fact,  if  one  uniform  Rule  had  not  been  laid  down,  it 
would  only  have  been  opening  a  door  to  fresh  schemes  of 
fraudulent  evasion. 
Answer  to  'Where,  indeed,  there  is  a  limitation  to  the  heirs  426 

another  special,  but  the  ancestor  himself  takes  no  estate  of 

objection        freehold,  as  in  Aland ev iW s  Case,  1  Inst.  2G  b,  the  heirs  spe- 
drawn  from    cial  take  in  the  same  manner  as  if  tlicy  had  been  in  under 
the  case  ot  a  a  limitation  to  the  ancestor  himseflTi^ut  this  is  a  fictitious 
fictitious  de-  a  descent  per  formani  doiii  under  The  statute  of  entails.'^(/) 
scent,  per       And  if  the  ancestor  were  living,  and  such  a  gift  had  been 
dni^"'^         construed  to  be  a  gift  to  the  ancestor  himself  under  the  Rule, 
the  ancestor  would  take  an  estate  in  the  land,  and  would 
have  had  the  power  of  disposing  of  the  estate,  though  the 
donor  had  plainly  excluded  him  from  both.     And  hence  it 
is  obvious  why  the  Rule  was  not  applied  to  cases  of  this 
kind  ;  and  it  is  evident  that  such  cases  have  no  effect  in  im- 
peaching the  reasons  above  given  for  the  adoption  of  the 
Rule,  as  it  applies  to  other  cases. 
[  216  ]  It  may,  at  first  sight  indeed,  be  thought  that  the  427 

latter  reason  just  assigned  for  the  non-application 
of  the  Rule  to  such  cases  as  Alandevi/e's,  would  equally 
serve  to  show  that  the  Rule  ought  not  to  have  been  adopted 
at  all  in  regard  to  any  other  cases ;  as  the  effect  of  it  is  to 
give  the  ancestor  the  power  of  disposing  of  the  inheritance. 
But  it  must  be  observed,  that,  in  those  cases,  as  mere  tenant 
See  §  770,  for  life,  independent  of  the  Rule,  he  might  have  destroyed 
776-8.  the  contingent  remainder  to  his  heirs,  unless  protected  by  a 

limitation  to  a  trustee  to  preserve. 
Fearne's  Again,  the  testator's  "  meaning  (as  Fearne  ob-  428 

answer  tothe  serves,  with  his  usual  acumen,  cogency,  and  felicity 
h  ^^^""r  of  expression,)  would  be  as  substantially  violated,  by  invest- 
that^the  Rule  -^^^  ^^^  ^^.^^  fortuitous  heir  with  the  power  of  defeating  the 
succession  to  the  whole  sequel  train,  as  by  investing  the  an- 
cestor himself  with  such  power;  except  that  the  first  heir 
himself  would,  in  the  latter  case,  be  equally  subjected  to  it 
with  all  the  rest.  And  why  not,  if  the  testator  has  not  dis- 
tinguished that  first  from  the  rest,  nor  of  consequence  pre- 
ferred him  to  the  ancestor  ?  The  law  imposes  the  dilemma 
of  committing  such  power  either  to  the  ancestor  or  his  next 
heir :  will  any  reasonable  inference  of  the  testator's  inten- 
tion in  the  matter  induce  the  preference  of  an  unknown  de- 
rivative character, accidentally  meeting  the  terms  of  a  general 
description,  to  the  original  attractive  object,  the  groundwork 
of  the  testator's  bounty,  and  to  which  the  attendant  relative 
designations  seem  mere  appendages  ?"(^) 

(/)  Prest.  View  of  Rule,  25.     Upon  this  point  see  also  Fearne,  80 — 82. 
(g)  Fearne,  201. 


testator's 
intention. 


II.  12.  iii.]  OF  EXECUTORY  INTERESTS.  [§429—432.        [  21G   ] 

429  V.  Another  reason,  also  foiiiKlcd  in  (he  nature  of  V.  Tho  ob- 
tlie  limitations  themselves,  remains  to  l)e  adduced,  jfft  of  the 

In  cases  that  fall  within  this  Rule,  and  in  certain   other  l^/^lc  is  to 
cases  noticed  in  the  following  Chapters,  there  are  two  co- g'v^  cfR-ct  to 
existing  yet  inconsistent  intents;  the  one  of  which  may  be  ^^^  primary 
termed  the  primary  or  paramount  intent,  and  the  ottier,  the  ^^  1''""^; 
secondary  or  minor    intent.     And,  as  tiiese,  by  reason  oi"!JJ*^j'J^"'j^'_^^"' 
their  inconsistency, cannot  be  both  eflectuated,  the  secondary  '  r'x 

or  minor  intent  is  sacrificed,  in   order  to  give  eflcct  to   the  y^^-ond^ry  or 
primary  or  paranfcunt  intent.  minor  intent. 

430  The  primary  or  paramount  intent,  in  cases  fall-  definition  of" 
ing  within  the   Rule,  is,  that  the  ancestor  should        [2171 

have  tiie  enjoyment  of  the  estate   for  his  life  ;  and   subject  t^g  primary 
thereto,  that  the  estate  should  descend  to  all  the  heirs  general  or  para- 
or  special  of  the  ancestor,  and  to  none  but   those  who   are  mount  intent 
heirs  of  the  ancestor.  inthcsecascs. 

431  Tlie  secondary  or  minor  intent  is,  to  accomplish  Definition  of 
the  primary  or  paramount  intent  in  a  particular  the  second- 
mode  ;  in  such  a  mode,  as  the  grantor  or  devisor  imagines,  ary  or  minor 
as  to  secure  that  primary  or  paramount  intent  from  being  intent, 
defeated   by  the  act  of  the  ancestor;  in  other  words,  the 
secondary   or   minor   intent   is,   that   the    ancestor   should 

have  a  life  estate  only,  and  that  the  heirs  should  take  by 
purchase. 

432  The  primary  or  paramount  intent  above  men- The  primary 
tioned  is  imported,  ex  vi  termini,  by   the  word  or  para- 

<' heirs,"  taken  in  connexion  with  the  limitation  of  a  pre- mount  intent 
ceding  freehold  to  the  ancestor.     For,  it  is  evident  that  ''  the  '^  imported 
ancestor  was  the  sole  ascertained  and  original  attracting  J^y.'"^.  ^^'°^" 
object,  the  groundwork  of  the  grantor's  or  testator's  bounty  ;  "^'^.®' '"  *^°"' 
and  the  heirs  general  or  special  being  all,  as  such,  equally  J!^'"*^"  ^^\ 
unascertained,  have  d\\,  prima  facie,  an  equal  claim  on  the  j^,,  rL^^hoid 
grantor's  or  testator's   regard,  groimded  entirely  on  their     " 
common   relationship    to  the  ancestor.     Unless,   therefore, 
we  have  some  apparent  ground  for  presuming  a  distinction 
and  a  preference    between  the  person  first  happening  to 
answer  the  general  description,  and  any  others  who  may 
afterwards  come  under  the  same  description  ;  it  is  only  fair 
to  suppose  that  the  testator  meant  the  persons  who  should 
take  after  the  ancestor,  shoidd  be  any  persons  indiscrimi- 
nately who  should  answer  the  description  of  heir  general  or 
special  of  the  ancestor,  and  be  entitled  only  in  respect  of 
such  description ;  and  that  the  succession  should  not  be  con- 
fined to  the  person  so  first  claiming,  and  his  representatives, 
as  such,  but  that  it  should  go  equally  to  all  other  persons 
successively  answering  the  same  description  of  heirs  general 
or  special  of  the  ancestor,  and  vest  in  them  in  that  character 
only.(/i) 

(A)  See  Fearne,  200. 


[  217  ]        II.  12.  iii.] 


AN  ORIGINAL  VIEW      [§433— 435a. 


Necessary  to 
[   218   ]" 
reject  the 
secondary  or 
minor  intent 
in  order  to 
effectuate  the 
primary  or 
paramount 
intent. 


both  in  the 
case  of  liini- 
tations  to 
heirs 
general. 


and  in  the 
case  of  limi- 
tations to 
heirs  special. 
[  219   ] 


Answer  to 
objection 
drawn  from 
the  case  of  a 
fictitious 
descent  per 
for  mam 
doni. 


Now,  admitting  it  to  be  clearly,  and,  in  fact,  433 

necessarily  inferrible  in  tbis  way,  tbat  it  was  the 
intent,  tbat  the  ancestor  sbonld  be  succeeded  by  any  person 
claiming  simply  in  the  ciiaracter  of  heir  general  or  special  ; 
and  tbat  all  oilier  persons  to  whom  the  same  character  of 
heir  general  or  special  of  the  ancestor  should  belong,  should, 
sini])ly  by  virtue  of  their  sustaining  that  character,  equally 
be  entitled  to  succeed  to  the  estate;  in  other  words,  and 
more  briefly,  if  the  estate  is  to  go  to  any  and  every  person 
who  can  claim  as  heir  general  o^^pecial  to  the  ancestor, 
and  every  such  person  is  to  take  simply  in  that  character  ; 
then,  in  order  to  eflectuate  this  intent,  and  secure  the  succes- 
sion to  its  intended  objects,  it  is  necessary  to  reject,  as  incon- 
sistent and  incompatible,  any  other  intent  that  the  ancestor 
should  take  an  estate  for  life  only,  and  the  heirs  should  take 
by  purchase. 

This  is  perfectly  clear  as  regards  limitations  of  434 

an  estate  to  the  heirs  general.  For,  "if  it  vests  in 
the  first  heir  general  by  purchase,  it  cannot  go  in  succession 
to  succeeding  heirs  of  the  same  ancestor,  not  being  heirs 
general  of  such  first  heir,  but  may  eventually  go  to  strangers, 
either  in  defect  or  exclusion  of  heirs  of  such  ancestor.  For,  if 
such  ancestor  be  the  father,  or  ex  parte  paternd,  of  the  heir 
so  taking  by  purchase,  and  such  heir  should  leave  no  heirs 
ex  parte  paternd ;  the  succession  will  be  to  his  heirs  ex  parte 
maternd.  And  if  such  ancestor  should  be  the  mother,  or 
ex  parte  maternd,  of  the  heir  so  taking  by  purchase  ;  the 
succession  will  be  to  his  heirs  ex  parte  paternd,  in  prefer- 
ence of  his  heirs  ex  parte  his  said  ancestor."(z)  Whereas, 
if  the  ancestor  is  the  first  purchaser  of  the  inheritance,  so 
that,  on  his  death,  it  vests  in  the  first  heir  by  descent,  it  goes 
to  those  heirs  only  of  the  first  heir,  who  would  also  be  heirs 
of  the  ancestor,  the  first  purchaser  and  the  primary  object  of 
the  grantor's  or  testator's  choice  or  bounty. 

And  the  same  is  the  case  with  limitations  to  435 

heirs  special.  For,  in  order  to  secure  the  succes- 
sion to  all  the  heirs  special  of  the  ancestor,  and  not  merely 
to  those  who  shall  likewise  be  heirs  special  of  the  first  heir 
special,  an  intent  that  the  ancestor  should  take  a  life  estate 
only,  and  that  the  heirs  special  should  take  by  purchase, 
must  be  rejected,  as  inconsistent  and  incompatible. 

Where,  indeed,  the  ancestor  takes  no  preceding  435a 
estate  of  freehold,  a  limitation  to  the  lieirs  special, 
though  vesting  in  the  first  heir  special  by  purchase,  will 
nevertheless  secure  the  succession  to  all  the  heirs  special  of 
the  ancestor,  in  the  same  manner  as  if  the  inheritance  had 
vested  in  the  ancestor  himself.     But  this,  as  we  have  seen, 

(i)  Fearne,  192. 


II.  12.  iii.]  OF  EXECUTORY  INTERESTS.  [§436—438.        [  219  ] 

is  a  fictitious  descent,  per  formam  doni,  under  the  statute  See  §  426. 

of  entails;  in  a  case  in  vvhicii,  from   the  non-existence  of 

any  estate  in  the  ancestor  under  the  terms  of  tiie  grant  or 

devise,  so  far  from  there  being  any  pretext  for  construing 

the  estate  hmited  to  the  heirs  special  to  vest  in  the  ancestor, 

such  a  construction  would  be  admitting  the  ancestor  to  an 

estate  in  and  a  power  over  the  land,  though  the  grantor  or 

devisor  himself  had  excluded  him  entirely.     In  this  case, 

therefore,  it  is  fairly  allowable  to  resort  to  the  fiction  of  a 

supposed  descent,  in  order  to  carry  the  estate  to  all  the  heirs 

special  of  the  ancestor,  without  vesting  the  inheritance   in 

the  ancestor.     Hence  it  is  evident,  that  this  case  does  not 

invalidate  the   general  argument,  that  where  the  ancestor 

takes  a  preceding  estate  of  freehold,  it  was  necessary  to  vest 

the  inheritance  in  the  ancestor,  in  order  to  carry  the  estate 

to  all  his  heirs  special.     For  it  is  not  to  be  imagined  that 

the  law  would  resort  to  the  fiction  of  a  supposed   descent, 

in  order  to  effectuate   the   intent  above-mentioned,  when, 

generally  speaking,  there  is  virtually  and  in  the  main,  a  real 

and  perfect  descent;  the   interests  of  the  ancestor  and   his 

heirs   special    jointly   possessing   the    distinctive    essential 

qualities  of  an  estate  tail  in   the  ancestor,  as  regards  the 

number  and  character  of  the  individuals  who  are  to  take 

by  virtue  thereof  ^  . 

436  And  as  the  mode  of  succession  may  well  be  re-  ^^^^  jefinlfe 

gardcd  as  subordinate  to  the  succession  itself,  and  f"^^,f ,,"' ^ 
v,  .  .  ,        ^  •  ]  lo  sdy  indi 

the  prescnbmg  a  certam  mode  of  succession,  a  secondary  or  ^^^  second- 
minor  consideration  in  comparison  with  the  admission   to  ^^^  ^^  minor 
such  succession  of  all   who  have  a  common  claim  upon  the  \^[^^[  jg 
same  ;  it  is  strictly  accurate  and  definite  to  say,  in  regard  to  sacrificed  to 
the  operation  and  the  reason  of  the  Rule,  that  the  secondary  effectuate 
or  minor  intent  is  sacrificed  for  the  pmpose  of  effectuating        [  ogo  ] 
the  primary  or  paramount  intent.  the  primary 

437  It  is  true,  indeed,  that  in  the  great  case  o{  Jesson  orpara- 

v.  fVright, Lord  Redesdale  said,  "that  the  general  mount  intent, 
intent  should  overrule  the  particular,  is  not  the  most  accu-  Observaiiona 
rate  expression  of  the  principle   of  decision.      The  rule  is,  of  Lord 
that  technical  words  shall    have   their  efiect,  unless,  from  Redesdale, 
subsequent  inconsistent  words,  it  is  very  clear  that  the  tes- 
tator meant  otherwise. "(/t) 

438  And   in   Doe  d.  Gallini  v.  Gallini,  Lord  Den-  and  Lord 
man,  C.  J.,  said,  "The  doctrine   that  the  general  Denman. 

intent  must  overrule  the  particular  intent,  is  incorrect  and 
vague.  The  more  correct  mode  of  stating  the  rule  of  con- 
struction, is,  that  technical  words  of  known  legal  import, 
must  have  their  legal  eti'ect,  even  though  the  testator  uses 
inconsistent   words,   unless  those    inconsistent    words    are 

(fr)  2  Bligh,  56. 
Vol.  II.— 23 


[  220  ]        II.  12.  iii.]  AN  ORIGINAL  VIEW        [§439—445. 

of  such    a   nature  as  to   make   it  perfectly  clear  that  the 
testator    did    not    mean    to    use    them   in    their   technical 
sense. "(/) 
They  are  These  observations  of  Lord  Redesdale  and  Lord  439 

just,  but  are  Demnan  are  perfectly  just;  and    they  accurately 
not  cxplana-  point  out  the  construction  involved  in  the  Rule.     But  they 
tory  of  the     (Jq  not  furnish,  and  probably  were  not  intended  to  furnish,  a 
grounds  of     satisfactory  explanation  of  the  grounds  of  the  Rule, 
ihe  Rule.  Why  have  the  technical  words  the  effect  of  over-  440 

Why  the  ruling  other  words,  which,  though  not  technical, 
technical  have  a  known  legal  import  as  much  as  the  techni- 
wordsover-    ^.^^  words  themselves?    "'The  intention,  expressed  441 

ruletheothcr  Qj.  necessarily  implied,  so  far  as  the  same  is  con- 
words,  sistent  with  the  rules  of  law,  is  the  controlling  rule  of  con- 
struction in  wills,  and  with  scarcely  any  exception, 
in  deeds  also.(7/i)     The  fact  seems  to  be,  that  the  442 
Wherein        technical  word  'Micirs"  has  this  effect,  because  (in 
consists  the    addition  to  the  other  grounds  of  the  Rule  above-mentioned) 
incorrectness  it  expresses  the  primary  or  paramount  intent ;  whereas  the 
and  vague-     other  words  only  express   a   secondary  or  minor 
nessofthe     intent;  and  that  the  incorrectness  and  vagueness  443 
common         ^^  j|^g  common  statement   of  the  principle  of  the 
^r^R^V^       ^^'^^  ^'^^^  "°^  '^^  "^  ^'^®  ascription  of  two  different  intents, 
r  221    1        ^'^*^  *^'^^  °^  which  is  made  to  give  way  to  tlie  other;  but  that 
*-           -1        such  statement  is  incorrect  and  vague  merely  by  reason  of 
the  adjectives  employed,  "  general"  and  "  particular,"  and 
from  the  omission  of  the  essential  circumstance  of  the  one 
intent  being  inconsistent  and  incompatible  with  the  other. 
This,  it  is  humbly  submitted,  is  sufficiently  clear  from  what 
has  been  said  in  the  preceeding  pages :  and  it  is  fully  borne 
out  by  the  words  of  Lord  Eldon,  C,  who,  in  moving  judg- 
ment in  the  House  of  Lords  in  the  very  case   of 
Observation   Jesson  v.  Wright,  said,  "  It  is  definitively  set-  444 
of  Lord          TLED  ASA  RULE  OF  LAW,  thut  wheve  there  is  a 
LIdon  on  ^^"^^ particular  and  a  general  or  paramount  intent,  tJic  latter 
general  and    shall prevail.{n). 

particular  ^^^j  jj^^  same  principle  is  distinctly  expressed  445 

intent.  -^^  Butler,  free  from  all  doubt,  with  regard  to  cer- 

Observation  ^^j,-,  cases  in  which  it  is  in  intended  that  all  the  issue  should 
of  Butler  on  take,  and  yet  that  unborn  sons  of  an  unborn  son  should  take 
the  general  ^^  purchase.  "Another  rule  in  the  construction  of  wills," 
and  particu-  ^-^  ^^^^^  ^,  which  is  admitted  in  a  much  greater  latitude 
than  it  is  in  the  construction  of  deeds,  is,  that  when  a  tes- 
tator's general  intent  appears,  the  Court,  in  order  to  give  it 

(/)  .5  Bar.  &  Adol.  640. 

(m)  Upon  this  point  See  Butler's  Note,  Co.  Litt.  271  b,  VII.  2,  beginning  of 
third  paragraph.     And  P'earne,  186. 
(n)  2  Bligh,  51. 


II.  12.  iii.]  OF  EXECUTORY  INTERESTS.  [§446— 4  19.        [  221   ] 

effect,  will  sacrifice  to  it  a  particular  intention  inconsistent 
with  it."(o) 

446  Hargrave  has  justly  observed,  «'that  the  Rule  The  Ilulo  is 
cannot  be  treated  as  a  medium  for  discovering  the  not  a  medium 

testator's  intention,  btU  that  the  ordinary  rules  for  the  inter-  for  ciiscovor- 
pretation  of  deeds  should  be  first  resorted  to;  and  that  when  ingthointen- 
it  is  once  settled  that  the  donor  or  testator  has  used  words  tion. 
of  inheritance,  according  to  their  legal  iiuport ;  lias  applied 
them  intentionally  to  comprise  the  whole  line  of  heirs  to 
the  tenant  for  life;  has  made  him  the  terminus, by  reference 
to  wliom  the  succession  is  to  be  regulated ;  then 

447  the  Rnleapplies.(;7)     But,  the  Rule  is  a  means  for  But  it  is  a 
ejjf'ccl ua/hig  ihe  [esialov's  primary  and  paramount  means  for 

intention,  when  previously  discovered  by  the  ordinary  rules  efToctuating 
of  interpretation;  a  means  of  accomplishing  that  intention  the  primary 
to  comprise  by  the  use  of  the  word  heirs,  the  whole  line  of  oi*  P^ira- 
heirs  to  the  tenant  for  life,  and  to  make  him  the  terminus,  ^}^^^^  '"*«"• 
by  reference  to  whom  the  succession  is   to  be  regulated.  ^'°"|.  ^qq  1 
And  the  way  in  which  the   Rule  operates,  as  a  means  of       L  ^^*  J 
doing  this,  is,  by  construing  the  word  heirs  as  a  word  of  "'^*^°^^'"^"' 
limitation ;  or,  in   other  words,  by  construing  the  limita- 
tion to  the  heirs  general  or  special,  as  if  it  were  a  limi- 
tation to   the   ancestor   himself  and   his   heirs   general  or 
special. 

448  The  same  learned  author,  however,  has  described  The  Rule  is 
the  Rule  as  i  paramount  to  and  independent  of  pri-  indeed  level- 

vate  intention. (<7)  And  it  has  been  said,  indeed,  by  a  very  led  agamst 
eminent  lawyer,  that  "instead  of  seeking  the  intention  of  the  ""tent, 
the  parties,  and  aiming  at  its  accomplishment,  it  interferes, 
in  some  at  least,  if  not  in  all  cases,  with  the  presumable, 
and,  in  many  instances,  the  express  intention.  In  its  very 
object  it  was  levelled  against  the  views  of  the  parties."(r) 
'I'he  same  position  has  also  been  advanced  and  elaborately 
and  ably  maintained  by  other  writers,  who  have  subse- 
quently treated  of  the  subject. (^)  And  it  would  seem 
scarcely  possible,  indeed,  for  any  one  to  review  the  cases, 
without  perceiving  that  such  was  the  very  object  of  the 
Rule;  that  "it  was  levelled  against  the  intention." 

449  But,  at  the  same  time,  from  a  careful  examina-  but  only 
tion  of  the  judgments  delivered  upon  those  cases;  against  the 

I'rom  a  consideration  of  the  views  of  the  profound  Fearne,  secondary  or 
by  whom,  as  Butler  remarks,  the  Rule  has  been  "  discussed  "i''»or  uitent. 
with  infinite  learning  and  ability;"  and  also,  it  is  humbly 
submitted,  from  the  attempt  which  has  just  been  made  iu 

(o)  Co.  Litt.  271  b,  note  (1),  VII.  2.  (/))  Co.  Litt.  376  b,  note  (1),  II. 

(g)  Co.  Liu.  376  b,  note  (1),  II.  (r)  Prest.  View  of  Rule,  12. 

(s)  See  Hayes's  Inquiry,  and  Hayes's  Principles,  passi/w ,-  Jarman's  Powell 
on  Devises,  301,  note(/));  Phillips's  Inquiry,  18, 


[222]        II.  12.  iv.]  AN  ORIGINAL  VIEW  [§450,451. 

the  preceding  pages  to  give  a  more  definite,  guarded,  and 
accurate  statement  of  the   grounds  of  the  Rule  ;  it  is  per- 
fectly clear  that  the  intention  against  which  the  Rule  is  so 
levelled,  is  a  mere  secondary  intent. 
Summary  of       In  fine,  to  sum  up  the  principles  or  grounds  of  450 

the  grounds    the  Rule,  in  a  few  words,  it  would  seem  clear  that 
of  the  Rule,    it  was  designed  to  effectuate  the  primary  or  paramount  (or, 
See  §  429-     as  it  is  commonly  but  vaguely  termed,  the  general)  intent, 
449.  at  the  expense,  and  in  defeasance  of  a  secondary  or  minor 

(or,  as  it  is  commonly  but  vaguely  termed,  particular)  intent, 
[  223  ]  amounting,  in  its  nature,  to  an  intent  to  accomplish  a  mere 
See  §  419,  fraudulent  evasion  of  the  incidents  to  a  descent,  and,  as 
420.  such,  prejudicial,  in  its  object  or  tendency,  to  the  lord  and 

the  specialty  creditors  of  the  ancestor;  an  intent,  too,  which 
See  §  421.     ^y^g  opposed  to  the  policy  of  tlie  commercial  times  which 
quickly  followed,  and  was  also  incompatible  with  that  pri- 
See  §  430,     mary  or  paramount  intent,  of  which  a  definition  and  expla- 
^^^'  nation  has  already  been  given. 

SECTION  THE  FOURTH. 

The  Application  and  Non-application  of  the  Rule,  in 
Cases  of  Legal  Estates  and  TVusts  Executed. 

Preliminary        If  we  do  but  carefully  bear  in  mind  the  terms  451 

caution.  of  the  Rule,  as  expressed  by  the  counsel  in  Shel- 

See  §  395-6.  ^^.V'-^  Case,  and  as  indicated  in  the  Provost  of  Beverhfs 
Case,  and  keep  steadily  in  view  the  principles  or  grounds 
thereof  above  mentioned,  we  shall  perceive  that  the  numer- 
ous decisions  upon  the  Rule,  with  scarcely  a  single  excep- 
tion, are  all  consistent  with  each  other;  and  we  shall  find 
little  or  no  difficulty  in  solving  any  other  cases  that  may- 
arise.  Whereas  if  we  abandon  or  misapprehend  the  prin- 
ciple, as  stated  and  explained  above,  that  in  the  cases  under 
See  §  429-  the  rule,  there  is  a  primary  or  paramount  intent,  and  a  se- 
449.  condary  or  minor  and  incompatible   intent,  the   latter  of 

See  §  430-1.  which  is  to  give  way  to  the  former ;  or  if  we  mistake  the 
true  import  of  those  terms ;  we  shall  abandon  all  hope  of 
untying  the  knots  in  the  subject,  and  be  driven  to  cut  them 
in  such  a  way  as  to  disaffirm  the  authority  of  numerous 
decisions,  which  never  have,  and  never  ought  to  be,  over- 
ruled, and  even  to  deny  that  ='  "  the  controlling  rule  of  con- 
struction in  wills,  is,  the  intention  expressed  or  clearly  im- 
plied;" to  contradict  which,  Fearne  observes,  "  would  be  a 
mockery,  a  denial  of  the  import  of  the  word  will. "(a)  Or, 
as  the  only  alternative,  we  shall  be  plunged  into  inconsist- 
ency and  uncertainty,  and  shall  then,  but  then  only,  have 
abundant  cause  to  say,  with  a  learned  author,  "  it  is  much 

(a)  Fearne,  186. 


II.  12.  iv.]  OF  EXECUTORY  INTERESTS.  [§452— ^jO.        [  224  ] 

and  seriously  to  be  lamented,  that  a  line  cannot  be  drawn 
so  nicely,  as  to  enable  a  distinction  to  be  clearly  taken,  dis- 
criminating those  cases  that  are,  and  those  that  are  not,  the 
objects  of  the  Rule.'' 

452  On  attending  carefully  to   the   principles  above  Three  gene- 
mentioned  three  general  rules  or  propositions  may  ral  proposi- 

be  laid  down  for  the  guidance  of  the  practitioner  in  deciding  tions  may  be 
as  to  the  application  of  the  Rule  in  S/iel/ei/'s  Case.  laid  down. 

PROPOSITION  I. 

^,       .  ,  1  1  I       I.  First  rrone- 

453  No  circumstances,  however  strongly  and  conclu-  ^.^j    ^^^^^j. 

sivcly  indicative  merely  of  an  intent  that  the  an-  tion,showin2 
cestor  should  take  a  life  estate  oidy,  and  that  his  heirs  general  ^v^Jrf.  the 
or  special  should  take  by  purchase,  will  be  sufficient  to  pre-  Rule  applies, 
vent  the  operation  of  the  Rule  ;  nor,  indeed,  will  the  most  noiwith- 
positive  direction  to  that  effect  be  sufficient  for  the  accom-  standing  ap- 
plishment  of  such  a  purpose:  because,  such  circumstances  parent  indi- 
or   directions   only   serve   to   make   the    secondary   intent  cations  to  the 
more    clear,    without   negativing   the    existence    of,   or    in  contrary, 
any  way  affecting,  the  primary  intent.     Hence  the  Rule  See  §  429- 

applies,  450. 

454  1.  "Though  the  property  is  limited  to  the  ances-  1.  Limitation 
tor  for  life  only,  or  for  life,  and  no  longer.(«)  for  life  only. 

455  2.   Though  limited  to  him  without  impeachment  2.  Or  with- 
of  waste.  (6)  out  im- 
peachment of  waste. 

456  3.  Though  there  is  a  power  given  him,  to  do  3.  Power  to 
that,  which,  as  tenant  in  tail,  he  might  do  without  makcajoint- 
anysuch  power;  as  ""to  make  a  jointure, or  leases.(c)  ureor  leases. 

457  4.   Though  his  estate  is  subjected  to  the  obliga-  4.  Obligation 
tion  of  keeping  the  buildings  in  repair,  t  (d)  to  repair. 

458  5.  ''Though  there  is  a  direction  that  he  shall  not        [  225    ] 
sell  or  dispose  of  the  estate,  for  any  longer  time  5.  Restraint 
than  his  V\i'e.{d)  of  alienation. 

459  6.  '^Though  there  is  a  limitation  to  trustees  to  g  Limitation 
preserve  contingent  remainders ;  and  there  is  no  j^  trustees  to 

preserve  contingent  remainders. 

(a)  Thong  v.  Bedford,  1  Bro.  C.  C.  313  ;  as  stated,  Fearne,  177. 

(6)  Jones  v.  Morgan,  I  Bro.  C.  C.  276;  as  stated  Fearne,  134.  Bennett  v. 
Earl  of  Tankerinle,  stated  §  475. 

(c)  Bale  V.  Coleman,  2  Vern.  670;  1  P.  W.  142;  as  stated,  Fearne,  124. 
Jones  V.  Morgan,  1  Bro.  C.  C.  276  ;  as  stated,  Fearne,  234.  Broughton  v. 
Langleij,  2  Ld.  Raym.  873  ;  as  stated,  Fearne,  159. 

(r/)f  Jcsson  v.  Wright,  stated  §  475. 

{(I)  Perrin  v.  Blake,  1  Black.  Rep.  672  ;  and  Hayes  d.  Foorde  v.  Foorde,  2 
Black.  Rep.  698;  as  stated,  Fearne,  156,  173. 


[  225  ]        II.  12.  iv.]  AN  ORIGINAL  VIEW         [§460—462. 

contingent  remainder,  unless  the  limitation  to  the  heirs  is 
one.(e) 

7.  Limitation  7.  *'Tlioii£?h  the  heirs  arc  to  take  for  their  460 
to  heirs  for     lives.(/)    (See  §  4S6.) 

their  lives,  8.  And  the   Rule  will   be  applied  even  where  461 

8.  Concur-     several  of  these  indications  occur  in  the  same  case. 

rcnce  of  ^  ^  testator  devised   to   his  wife,  for   life;    remainder    to 

several  ot  trustees,  &c.,  remainder  to  his  daughter,  for  life ;  remain- 
these  mdi-  jg^,  ^^  trustees,  &c.;  and,  from  and  immediately  after  the 
cations.  decease  of  his  daughter,  he  devised  to  the  heirs  of  her  body; 

Roe  a.  j^j^j^  |-^jj.  ^yam  Q^  such  issue,  then,  to    IV.   T.  and  his  heirs; 

Ti'^f^y       it  being  his  will  and  meaning,  that  after  the  decease  of  his 
d  AT       kr      '^^'f'^j  l^is  daughter  should  have  only  an  estate  for  life;  and 
g  J  '^gp.,         that  after  the  decease  of  his  wite  and  daughter,  the  premises 
should  go  to  and  vest  in  the  heirs  of  the  body  of  his  daugh- 
ter; and  that  for  want  or  in  default  of  such  issue,  the  same 
should  vest  in  W.   T.  and  his  heirs;  and  that  his  daughter 
should  not  have  any  power  to  defeat  his  intent  and  mean- 
ing in  this  respect.     It  was  held,  that  the  daughter  took  an 
estate  tail. 
Keece  v.  And  where  a  testator  devised  to    C.  H.  all  his  real  estate, 

Steely  2  Sim.  during  the  term  of  her  natural  life,  and  to  her  heirs,  the  issue 
^33.  of  her  body,  for  ever,  during  the  term  of  their  natural  lives. 

See  also  jf  ^js  niece  had  no  son,  then,  to  her  eldest  daughter.  Each 
Jones  V.        iieii-  ^^^s  only  to  be  tenant  for  their  respective  natural  lives, 

CO  O  P     "1 
^~"  J        during  the  term  of  99  years  from  the  testator's  decease ; 

Morgan,  1    devesting  all  from  power  to  sell.     No  timber  was  to  be  cut 

n.  y^.y.^iv,  (jQ^yji^  except  for  repairs.     A  proviso  was  added,  that  if  his 

Y^.^^^  ^'       niece  left  no  issue,  or  should  they  become  extinct,  all  his 

1)  r-y.i  j  real  estate  should  go  over.  The  Vicc-Chancellor  held  that 
K.  07^;  and  r^    tlt  ,.     \  ,.  ^    *   •\ 

w,i//.e  \j        ^'  ■"•  too*^  ^'^  estate  tail. 

Foorde,  2  Bl.  R.  698;  as  stated,  Fearne,  134,  156,  173. 

9.  Freehold  9.  It  applies  in  the  case  of  a  freehold  determin-  462 
determinable  able  in  the  ancestor's  lifetime. 

in  the  ances-  Lands  were  limited  to  E.  B.,for  life,  if  she  continued  sole 
tor's  lifetime,  and  unmarried,  with  an  ultimate  limitation  to  the  heirs  of 
Curtis  V.  her  body.  And  Sir  W.  Grant,  M.  R.,  held,  that  there  was 
Price,  12  ^  vested  estate  tail,  instead  of  a  contingent  remainder,  not- 
Ves.  89.  withstanding  the  possibility  that  the  first  estate  might  termi- 
feee  also  ^^^^  j^^  ^j^^  H^^  ^^  jl^^  widow,  and  before  there  could  be  an 
fearne  30,  i  •  r  i  u  i 
r.,  oo        '     lieir  of  her  body. 


(e)  Wright  v.  Pearson,  as  stated,  Fearne,  126,  &c.  Coulson  v.  Coulson,  2 
Stra.  1125;  as  stated,  Fearne  161.  Hodgson  w.Jhnbrose,  Doug.  Rep.  337;  as 
stated,  Fearne,  174. 

(/)  ILnjea  v.  Foordc,  2  Bl.  R.  698;  as  stated,  Fearne,  173. 


II.  12.  iv.]  OF  EXECUTORY  INTERESTS.  [§4G3— 4GG.        [  22U  ] 

463  10    ""It  applies  whore  the  (Veehold  is  by  imphca-  10.  Frce- 

tion.(/)  '  ^'^^'^  '/y  '^"- 

11.   It  also  appHcs  where  the  ancestor  takes  t'no  plication. 

464  express  estate,  nor  any  estate   by  iinpUcation,  but  H-  Free- 
an  interest  is  hmitod  to  his  heirs  special,  in  cases  liold  by  re- 

where  he  is  the  grantor,  and  that   interest   is  preceded  by  sulhng  use, 
estates  for  life  or  in  tail,  which  of  course  may  regularly  ex-  where  a 
pire  in  the  Ufetime  of  the  grantor,  by  their  original  '''^^'^a- J'||J^'?j'^^'|^''^ 
lion,(^)  and  '•  not  merely  by  surrender  or  forfeilure.(/0  ^^^^  j^^  .^^ 

In  this  case,  inasmuch  as  the  interest  limited  to  j,      -yi  ^p 
4G5  the  heirs  special  of  the  grantor,  cannot  vest  till  his  ^j'^^  „rantor, 

death,  and  the  preceding    interest  may  regularly  3^^,^  59^ 
expire  before  his  death,  nay  the  very  instant  after  the  de-  q^^  407/ 
livery  of  the  deed  creating  them;  there   is  a  freehold  use 
remaining  undisposed  of  in  the  grantor,  sufficient  to  attract 
the  operation  of  the  Rule. 

And  this  is  the  case  even  where  there  is  an  ulterior  vested  even  where 
interest.     For,  it  is  evidently  the  intention  that  such  ulterior  there  is  an 
vested  remainder  should  only  occupy,  or  absorb,  as  it  were,       [  227   ] 
that  portion  of  the  seisin,  property,  or  ownership,  subse-  ulterior 
quent  to  the  death  of  the  grantor  :  and  even   then,  that  it  vested  jnter- 
should  so  occupy  or  absorb  it,  subject  to  open  and  let  in  the  ^st. 
preceding  estate,  in  favour  of  the  heirs  special  of  tiie  grantor,  ^'^^  ^  46-  / , 
in  case  there  should   be  any  at  the  death  of  the  grantor  :  ^^• 
because,  of  course  there  is  no  probability  that  the  grantor 
intended  that  his  heirs  special  should  be  excluded,  merely 
in  consequence  of  the  preceding  estates  happening  to  expire 
before  his  death.     And,  in  the  case  supposed,  where  the 
heirs  special  are  the  heirs  special  of  the  grantor,  there  is  no 
good  reason  why  this  exclusion  should  not  be  prevented,  or 
why  the  intention  that  the  ulterior  vested  remainder  should 
not  occupy  or  absorb  any  portion  of  the  seisin,  property,  or 
ownership,  anterior  to  the  death  of  the  grantor,  should  not 
be  effectuated,  when  all  that  is  necessary  for  the  purpose,  is, 
to  regard  the  intervening  portion  of  the  use,  between  the 
expiration  of  the  preceding  estates  and  the  death  of  the 
grantor,  as  undisposed  of,  and  still  remaining  in  the  gran- 
tor. 
466  Where  indeed  the  limitation  is  to  the  heirs  spe-  Cases  wliere 

cial,  not  of  the  grantor,  but  of  a  third  person,  then  the  limitation 
the  exclusion  of  the  heirs  special,  in  the  event  of  the  expira-  is  to  the 
tion  of  the  preceding  estates,  cannot  be  prevented  ;  and  the  heirs  special 


(/)  Fearne,  41.  ,   ^ 

(?)   mils  V.  Palmer,  5  Burr.  2615  ;  2  Black  Rep.  687 ;  as  stated,  Fearne, 

45;"  overruling  Southcot  v.    Stowell,  1  Mod.  226,  237;  2  Mod.  207,  211  ;  as 

sttitcd   Fctirnc   44 . 

(/j)'See  Tipphiy.  Cosin,  Carth.  272  ;  4  Mod.  380 ;  as  stated,  Fearne,  43—4. 


[   221   ]         II.  12.  iv.] 


AN  ORIGINAL  VIEW         [§167— 4G9. 


of  a  thill] 
person. 


12.  Freehold 
by  resulting 
use,  where  a 
[   228   ] 
springing  in- 
terest is  lim- 
ited to  the 
heirs  special 
of  the 
grantor. 
See  §  117- 
I24a,  75. 

13.  Where 
there  are 
apparently 
two  concur- 
rent contin- 
gent re- 
mainders. 

Doe  d.  Cole 
V.  Gold- 
smith, 7 
Taunt.  209. 


14.  Where 
ancestor's 
estate  is  not 
for  his  own 
benefit. 


ulterior  vested  remainder  must  occupy  and  absorb  the  seisin, 
property,  or  ownership,  subsequent  to  the  preceding  estates; 
as  well  that  part  which  is  anterior  to  the  death  of  the  ances- 
tor, to  whose  heirs  special  the  intermediate  limitation  is 
made,  as  that  part  which  is  subsequent  to  his  death,  subject 
to  open  and  let  in  the  remainder  to  such  heirs  special.  For, 
there  is  no  room  for  the  construction  adopted  in  the  other 
case  ;  and  even  if  an  estate  could  be  raised  by  implication 
in  a  deed,  there  is  no  implication  that  the  ancestor  was  in- 
tended to  take  an  estate  of  freehold,  although,  indeed,  there 
is  no  probability  that  the  limitation  to  his  heirs  special  was 
intended  to  fail,  merely  in  consequence  of  the  preceding 
estates  expiring  before  his  death. 

12.  The  Rule  also  applies  where  the  ancestor  467 
takes  no  express  estate,  nor  any  estate  by  implica- 
tion, but  a  limitation  is  made  to  his  heirs  special,  in  cases 
where  he  is  the  grantor,  ''unpreceded  by  any  other  hmita- 
tions,(A)  or  'by  none  but  limitations  of  chattel  interests. (?) 
In  these  cases,  the  entire  fee  simple  remains  in  the  grantor, 
whether  there  are  any  ulterior  limitations  or  not ;  because 
even  if  there  are  any  ulterior  interests,  none  of  them  can  be 
vested.  And  as,  therefore,  the  grantor  has  virtually  a  par- 
ticular estate  of  freehold,  the  rule  executes  the  interest  limited 
to  his  heirs  special  in  himself. 

13.  The  Role  applies  even  where  it  might  ap-  468 
pear  that  the  limitation  to  the  heirs  of  the  body  of 

the  ancestor,  and  the  limitation  over,  were  intended  to  be 
two  concurrent  contingent  remainders,  the  latter  to  take 
effect  as  an  alternative  limitation,  in  case  there  should  be  no 
heir  of  the  body,  at  the  decease  of  the  ancestor. 

A  testator  devised  to  F.  G.  all  his  lands,  to  hold  to  him 
and  his  assigns,  for  life  ;  and,  immediately  after  his  decease, 
he  devised  the  same  unto  the  heirs  of  his  body  lawfully  to 
be  begotten,  in  such  parts,  shares,  &c.,  as  F.  G.  should  ap- 
point; and,  in  default  of  such  heirs  of  his  body  lawfully  to 
be  begotten,  then,  immediately  after  his  decease,  over  to  F. 
G.  It  was  held  that  F.  G.  took  an  estate  tail  by  implica- 
tion. 

14.  ''Where  it  is  limited  to  the  ancestor  in  trust  469 
for  another,  or  to  answer  some  particular  purpose, 

and  not  for  his  own  benefit,  Fearne  considers  that  the  case 
does  not  fall  within  the  Rule.  Butler,  however,  remarks 
that  Courts  of  Law  must  treat  tlie  case  as  falling  within  the 


(Ji)  Pihus  V.  Mitford,  1  Ventr.  372  ;  as  stated,  Fearne,  41,  42. 

(i)  Penhay  v.  Hurrell,  2  Vern.  370 ;  as  stated,  Fearne,  25.  Sec  also  But- 
ler's note,  Fearne,  41,  (y),  in  opposition  to  Adams  v.  Savage,  2  Salk.  679,  and 
to  Rawley  v.  Holland,  Vin.  V.  22,  p.  189,  pi.  11;  as  stated,  Fearne,  42,  43. 


II.  12.  iv.]  OF  EXECUTORY  INTERESTS.  [§470— 471b.        [  228  j 

Rule;  because  they  cannot  take  notice  of  any  trust  charged 
on  legal  estate. (A) 

470  15.   It  may  liere  be  added,  that, '  the  Rule  is  ap-  15.  Where 
plied  in  equity  where  both  estates  are  equitable, (/)        [  229  ] 

even  though  the  first  be  '"for  the  separate  use  of  a  feme  both  estates 

covert. (//i)     But  "it  does  not  apply  where  the  first  estate  is  are  equit- 

legal,  and  the  other  equitable  ;(n)  or  "  vice  versd.{o)  ^^'*^'.""^  ^'^® 

°    '  first  IS  for 

separate  u.se  of  feme  covert. 

471  16.  The  ''Rule  is  equally  applicable,  whether  16.  Copy- 
the  hereditaments  are  of  freehold  or  of  copyhold  hold, 
tenure. (;;.) 

471a  17.  'I'he   Rule  applies   where  the  limitation  to  17.  Whore 

the  heirs  of  the  ancestor,  is  an  ulterior  limitation  a  limitation 
to  his  right  heirs  male,  after  an  intermediate  limitation  to  to  right  heirs 
his  first  and  other  sons.  male  follows 

A  testator  devised  to  P.,  for  life ;  remainder  to  trustees  to  °"^  ^^  ^^=^ 
preserve  &c. ;  remainder  to  the  first  and  other  sons  of  p.^  and  other 
Duke  of  ..^.,  with  remainder  to  the  right  heirs  male  of  P.    It  ^^"^• 
was  held  that  P.  took  an  estate  in  tail  male  in  remainder;  Doe  d.  Earl 
Bayley,  J.,  observing,  that  such  remainder  was  not  neces- v  ^^''"^^^ 
sarily  inoperative:  for,  cases  might  be  put,  where  persons  y*  V?  y^"'"' 
would  have  taken  as  "heirs  male"  of  the  body  of  the  Duke,  „       ^^  ' 
and  yet  would  not  have  taken  under  the  limitation  to  his 
first  and  other  sons  in  tail  male;  as,  if  the  Duke  had  had 
au  eldest  son,  who  died  in  the  lifetime  of  the  testator,  leaving 

a  son. 
471b  18.  Even  where  a  testator  devises  to  his  wife,  18.  Tenant 

for  life;  remainder  to  the  heirs  of  her  body  by  in  tail  after 
him;  and  she  never  has  any  issue  by  liim;  the  Rule  will  possibility  of 
be  applied  by  considering  her  to  be  tenant  in  tail  after  pos-        [  230  ] 
sibility  of  issue  extinct,  in  respect  of  the  possibility  she  had  issue  extinct, 
of  issue  during  nine  months  from  the  testator's  decease. 

A  testator  devised  a  reversionary  estate  to  his  wife  (who  piutf  v. 
never  had  issue  by  him.)  for  the  term  of  her  life;  and  from  Fowles,  2 

(k)  Fearnc,  35,  and  note  (/>). 

(Z)  Fearne,  59.  Garth  v.  Baldwin,  2  Vcs.  Sen.  646  ;  as  stated,  Fearne,  125, 
126.  Wright  v.  Pearson,  as  stated,  Fearne,  126,  &c.  Brydges  v.  Bryd^es, 
3  Ves.  Jun.  120;  as  stated,  Butl.  note  (g),  Fearne,  201;  overruling  Bagshaw 
V.  Spencer,  Ves.  Sen.  142  ;  as  stated,  Fearne,  121,  &:c. 

(m)  Fearne,  56;  and  Pitt  v.  Jackson,  2  Brown's  Rop.  Chanc.  51;  as  stated, 
Fearne,  57. 

(n)  Tippin  v.  Co.nn,  Carth.  272;  4  Mod.  3S0 ;  as  stated,  Fearno,  43,  52.  Shop, 
land  V.  Smith,  1  Brown's  Rep.  Chanc.  75;  and  Silvester  v.  Wilson,  2  D.  *S:  E. 
444;  as  stated,  P'earne,  57,  58. 

(rt)  Fearne,  58,  59;  and  Venables  v.  Morris,  7  D.  &  E.  342,  438;  as  stated, 
Fearne,  59,  note  (d). 

(p)  Fearne,  60 — 71. 
Vol.   II.— 24 


[  230  ]        II.  12.  iv.]  AN  ORIGINAL  VIEW        [§472—474. 

Mau.  &  Sel.  and  after  her  decease,  to  the  heirs  of  her  body  by  him ;  and 
65.  for  want  of  such  issue,  to  his  brother-in-law.     It  was  held, 

that  the  wife  was  tenant  in  tail  after  possibility  of  issue 
extinct,  the  words,  and  the  possibility  she  had  of  issue 
during  nine  months  from  the  testator's  death,  being  sufficient 
to  constitute  her  such. 

II.  Second  PROPOSITION  II. 

general  pro-  .,,,  ,.       .         /.,t-,i,  ijj  ,•-»« 

position,  Nor  will  the  application  of  the  Rule  be  excluded  472 

sho\vin<^         by  any  words  which  do  not  unequivocally  indi- 

where  tlie      cate,  but  are  only  capable  of  being  regarded  as  indicating, 

Rule  applies,  the    objects   of  succession   to    be    individuals    other   than 

See  §  429-     persons  who  are  to  take  simply  as  heirs  general  or  special. 

450.  Hence, 

l.Wordheir,       1.  The  Rule  applies,  <i  though  the  word  "  heir"  473 

in  the  singu-  is  used  in  the  singular,((7)  even  •'with  the  restric- 

lar,  with  the  tive  word  next,  first,  or  eldest,  prefixed  to  it,(r)  unless  there 

word  next,     are   superadded    words   of  limitation;  because    "heir"    is 

first,  or  nomen  collect ivrim,  and  equivalent  to  "heirs;"  and  the  word 

eldest,  but      fiist,  next,  or  eldest  heir,  may  mean  the  heir  who  from  time 

without  su-    to  time  shall  answer  that  description,  and  not  that  person 

peradded        alone  who  shall  first  answer  such  description. 

words  of  li-        2.  It  also  applies,  though  in  addition  to  the  first  474 

mitation.        words  of  inheritance,  namely,  heirs  or  heirs  of  the 

See  §  485.     ]^Q^y^  j,-,  the  plural  number,  there  are  superadded  words, 

2.  Words  of  provided  they  are  -'similar  to  the  first  words,(.v)  or  provided 

limitation        ^^^^y  »  may  fairly  be  assimilated  to  the  first  words,  merely  by 

superadded     g^ppiyiug^  as  an  ellipsis,  the  words  which  are  necessary  for 

^  ^?^  ^        that  purpose,  or  by  understanding  the  one  to  be  used  in  the 

to  the  word    ^^^^^^  ^^^^^^  ^^  ^^^   other ;(/)  and   by  rejecting   the    word 

S^*'"^/  .0-,      assigns,  if  used,  as  mere  surplusage. 

&ee  9  40/.         ^  testator  gave  freehold  and  leasehold  estates  to  trustees 

ir  1  9'  ^"^  ^^^^i^'  ^^^^'■^'  "P"'^  ^'""^•'  ^°  permit  his  son  T.  to  take  the 
nard.z  j.^^^^g  ,^j^^  profits,  for  life ;  and  from  and  after  the  decease  of 
bim.  &  fetu.  j^.^  ^^^^  rj,  ^[^g  testator  gave  such  freehold  and  leasehold 
estates  unto  the  heirs  of  the  body  of  his  son,  lawfully  be- 
gotten, their  heirs,  executors,  administrators,  and  assigns,for 
ever;  but  in  case  his  son  T.  should  die  without  issue,  then, 


409 


{q)  Blackburn  v.  Stables,  stated  §  493  ;  Barley's  Case,  1  Vent.  230  ;  Whit- 
ing V.  Wi/kiiis,  1  Bulstr.  219;  Richards  v.  Lady  Bergavenny,  2  Vern.  324; 
and  White  w  Collins,  Com.  Rep.  289;  as  stated,  Fearne,  179. 

(r)  Miller  v.  Seagrave,  Robinson's  Gavelk.  96 ;  and  Dubber  d.  Trollope  v. 
Trollope,  Amb.  453  ;  as  stated,  Fearne,  179. 

(s)  See  Dovglas  v.  Conscreve,  1  Bcav.  59 ;  as  stated,  §  477. 

(t)  Shelley's  Case,  1  Co^  Rep.  93,  as  stated,  Fearne,  181.  Wright  v.  Pear- 
son, as  stated,  Fearne,  126,  &c.  Goodright  v.  Pnllyn,  2  Ld.  Raym.  1437,  as 
staled,  Fearne,  160.  Morris  v.  Le  Gay,  cited  2  Hurr.  1102,  as  stated,  Fearne, 
161.     Hayes  d.  Foorde  v.  Foorde,  2  Blac.  Rep.  698,  as  stated,  Fearne,  173. 


II.  12.  iv.]  OF  EXECUTORY  INTEPxESTS.  [§475.        [  231    ] 

he  gave  llie  said  estates  upon  trust  for  the  benefit  of  his  sou 
fV.,  and  the  heirs  of  his  body,  lawfully  begotten,  in  like 
manner  as  he  had  devised  the  same  for  the  benefit  of  his 
son  T.  and  the  heirs  of  his  body.  The  question  was,  what 
estate  7'.  took  in  the  leaseholds.  Sir  John  Leach,  V.  C, 
held,  that  ihe  gift  over  was  not,  as  in  the  case  of  Hvd<rcson 
V.  Bussey,  2  Atk.  89,  in  default  of  such  issue,  but  in  default 
of  issue  generally  ;  that  the  devise  to  the  trustees  to  permit 
the  son  to  take  the  rents  and  profits,  clearly  created  a  legal, 
and  not  a  mere  equitable  estate;  that  the  words  of  limita- 
tion atinexed  to  the  gift  to  the  heirs  of  the  body  must  be  re- 
jected, as  well  with  respect  to  the  freehold,  as  the  leasehold 
estate;  and  that  7'.  took  an  absolute  interest  in  the  lease- 
hold property. 

Again;  a  testator  devised    to  .^.,  for  life;  and  after  her  Measttre  \. 
decease,  to  her  son,  J.  T.,  for  life  ;  and  after  the  dctermina-  6-V,  5  Bar. 
tion  &c.,  to  trustees,  to  preserve  &c. ;  and,  from  and  after  &  Aid.  910. 
the  decease  of  J.  T.,  then,  he  devised  to  the  heirs  of  the 
body  of  J.  T.,  his,  her,  and  their  heirs  and  assigns  for  ever ; 
but,  in  case  there  should  be  a  failure  of  issue  of  the  body  of 
J.  T.,  then  over.     The  Court  of  King's  Bench  certified,  that 
J.  T.  took  an  estate  tail  in  remainder. 

So  where  a  testator  devised  lands,  in  trust  for  F.  JV.,  till  Nash  v. 
he  should  arrive  at  the  age  of  21,  upon  his  legally  taking  Coatcs,  3 
and  using  the  testator's  surname  ;  and  then,  upon  his  attain-        [  232  J 
ing  such  age,  and  taking  that  name,  hahcndinn  to  liim,  for  Bar.  «Si  Adol. 
life  ;  and,  from  and  after  his  decease,  to  hold  to  the  trustees,  839. 
and  the  survivor  of  them,  and  the  heirs  of  such  survivor, 
to  preserve  contingent  remainders  in  trust  for  the  heirs  male 
of  the  body  of  F^ IV.,  taking  the  testator's  name,  and  the 
heirs  and  assigns  of  such  male  issue  for  ever ;  but,  for  want 
and  in  default  of  such  male  issue,  then,  upon  similar  trusts 
for  /'.  ^r.'s  brother  and  his  issue.     It  was  held  that  F,  IV. 
would  take  an  estate  tail  on  his  coming  of  age,  and  taking 

the  testator's  surname. 
475  3.  The  Rule  also  applies,  though  words  of  dis-  3-  ^"1^^'?"" 

tributive   modification  are   superadded,  provided  ^^^' ^^'°''^^  °* 
there  are  no  superadded  words  of  limitation,  and  no  other  o's^rruiive 
unequivocal  indications  that  the  word  iieirs  is  not  used  in  '"."! '  '^'^  '"^   ' 
the  technical  sense;  because  the  grantor  or  testator  might  ^^^^jj^^ 
liave  erroneously  supposed  that  the  heirs  might  take  in  that  ^^.^^j.jg  ^p 
character,  and  yet  in  a  distributive  mode  ;  and  therefore  iji^jitation. 
these  words  of  modification  are  rejected  as  repugnant.  g^g  ^  ^gg^ 

A  testator  devised  to  his  daughter  and   the   heirs  of  her  4SSa. 
body  lawfully  to  be  begotten,  for  ever,  as  tenants  in  com-  ^^^  j_ 
mon  ;  and  in  case  iiis  daughter  should  happen  to  die  beibre  Cand/cr  v. 
21,  or  without  leaving  issue  on  her  body  lawfully  begotten,  .S',/,///j,i7D. 
then  over.     It  was  held  an  estate  tail  in  the  daughter.  Lord  ^  £,  531. 
Kenyon,  C.  J.,  after  adverting  to  Hoe  d.  Dodson  v.  Grew, 


[  232  ]        II.  12.  iv.]         AN  ORIGINAL  VIEW 


[§475. 


Bennett  v. 
Earl  of 
Tankerville, 
19  Ves.  170. 


[   233   ] 


Pierson  v. 
Vickers,  5 
East,  548. 


Jesson  V. 
Wright,  2 
Bligh,  51. 


2  Wils.  323,  said,  ho  admitted  that  in  tliis  case  the  testator  in- 
tended his  daughter  to  take  an  estate  for  Hfe  only,  i^nd  her 
children  as  purchasers ;  but  then  he  also  intended  that  all 
the  progeny  of  those  children  should  take  before  any  inter- 
est should  vest  in  his  more  remote  relations ;  and  the  latter 
intention  could  not  be  carried  into  effect  unless  the  daughter 
took  an  estate  tail. 

Again  ;  a  testator  devised  to  liis  younger  son,  to  hold  to 
him  and  his  assigns  during  the  term  of  his  natural  life,  with- 
out impeachment  of  waste  ;  and,  from  and  after  his  decease, 
to  the  iieirs  of  his  body,  to  take  as  tenants  in  common  and 
not  as  joint  tenants  ;  and  in  case  of  his  decease  without  issue 
of  his  body,  to  his  eldest  son, his  heirs  and  assigns  for  ever; 
and  in  case  both  sons  should  die  before  21,  over.  The 
Master  of  the  Rolls  held  that  the  younger  son  took  an  estate 
tail.  And  referring  to  Strons^v.  Goff,  11  East,  668,  he 
said,  that  it  was  evidently  distinguishable  from  the  other 
cases,  and  from  the  present.  That  there  was  not,  in  that 
instance,  any  indication  of  an  intention  that  the  estate  should 
not  go  over  until  after  an  indefinite  failure  of  issue  :  it  was 
to  go  over  if  the  children  should  not  attain  21. 

And  even  where  a  testator  devised  to  his  daughter  and  to 
the  heirs  of  her  body  lawfully  to  be  begotten,  whether  sons 
or  daughters,  as  tenants  in  common  ;  and,  in  default  of  such 
issue,  then  over.  It  was  argued,  on  the  one  hand,  that  the 
words  "  sons  or  daughters"  meant  no  more  than  "  male  or 
female."  On  the  other  hand,  the  counsel  for  the  defendant 
contended,  that  they  explained  the  words  "  heirs  of  the 
body"  to  mean  sons  or  daugliters.  But  Lord  Ellenborougb, 
C.  J.,  asked  the  counsel  for  the  defendent,  how  he  got  rid  of 
the  words  "in  default  of  such  issue?"  To  this  he  replied, 
that  they  referred  to  sons  and  daughters  :  upon  which,  Law- 
rence, J.,  intimated,  that  there  was  nothing  in  the  will  to 
confine  the  words  to  issue  living  at  the  death  of  the  daugh- 
ter ;  and  observed,  that  these  words  are  always  construed  to 
mean  an  indefinite  failure  of  issue,  unless  restrained  by  other 
words.  The  Court  afterw'-ards  certified,  that  the  daughter 
look  an  estate  tail. 

So  where  a  testator  devised  to  W.,  a  natural  son  of  his 
sister,  for  life,  he  keeping  the  buildings  in  repair;  and,  after 
his  decease,  to  the  heirs  of  the  body  of  W.,  in  such  shares 
and  proportions  as  he  should  appoint;  and,  for  want  of  such 
appointment,  then,  to  the  heirs  of  the  body  of  tV.,  share 
and  share  alike,  as  tenants  in  common  ;  and  if  but  one  child, 
then,  to  such  only  child;  and  for  want  of  such  issue,  to  the 
testator's  right  heirs.  It  was  held  by  the  Court  of  Queen's 
Bench,  that  W.  took  an  estate  for  life  only,  with  remainders 
to  his  children,  for  life,  respectively,  as  tenants  in  common. 
But  the  House  of  Lords  reversed  this  judgment, and  decided 


II.  12.  iv]  OF  EXECUTORY  INTERESTS.  [§175.        [  233  J 

that  IV.  took  an  estate  tail.  The  Lord  Chancellor,  in  mov- 
ing judgment,  remarked,  that  it  was  definitively  settled,  as 
a  rule  of  law,  that  where  there  is  a  particular,  and  a  general 
or  paramount  intent,  the  latter  shall  prevail;  (2  Bligl),  51;) 
and  that,  upon  the  whole,  he  thought  it  was  clear  that  the  [  234  ] 
testator  intended  that  all  the  issue  of  IF.  should  fail,  before 
the  estate  should  go  over  according  to  the  final  limitation. 
(2  Bligh,  55.)  Lord  Redesdale  expressed  himself  thus: — 
"That  the  general  intent  should  overrule  the  particular,  is 
not  the  most  accurate  expression  of  the  principle  of  decision. 
The  rule  is,  that  technical  words  shall  have  their  legal  effect, 
unless,  from  subsequent  inconsistent  words,  it  is  very  clear 
that  the  testator  meant  otherwise.  In  many  cases,  in  all,  I 
believe,  except  Doe  v.  Goff,  it  has  been  held  that  the  words 
'tenants  in  common,'  do  not  overrule  the  legal  sense  of 
words  of  settled  meaning.  It  has  been  argued,  that  heirs 
of  the  body  cannot  take  as  tenants  in  common;  but  it  does 
not  follow  that  the  testator  did  not  intend  that  heirs  of  the 
body  should  take,  because  they  could  not  take  in  the  mode 
prescribed.  This  only  follows,  that  having  given  to  heirs  of 
the  body,  he  could  not  modify  that  gift  in  the  two  diflerent 
ways  which  he  desired,  and  the  words  of  modification  are 
to  be  rejected."  (76.56,57.)  His  Lordship  added,  that  it  See  §  488a. 
was  impossible  to  decide  the  case,  without  holding  that  Doe 
V.  Goffis  not  law.  {lb.  58.) 

And  so  where  a  testator  devised  lands  to  his  son-in-law,  j)oe  d.  At- 
John,  and  Elizabeth  his  wife,  for  their  lives,  and  for  the  life  himon  v. 
of  the  survivor;  and,  from  and  immediately  after  the  de-  Fetherstone, 
cease  of  the  survivor,  then   unto   the  heirs  of  the   body  of  1  Bar.  & 
Elizabeth,  by  John,  to  be  equally  divided   among   them,  Add.  944. 
share  and  share  alike.     And  he  devised  to  John,  all  the  re- 
sidue of  his  real  and  personal  estate.     It  was  held,  upon  the 
authority  of  the  case  o{  Jesson  v.  Wright,  (2  Bligh,  1,)  that 
these  words  created  an  estate  tail,  and  not  a  life  estate,  with 
remainders  to  the  children  of  Elizabeth,  by  John,  notwith- 
standing the  words  'Mo  be  equally  divided  between  them," 
"  share  and  share  alike  ;"  and  although  there  was  no  devise 
over  "for  want  of  such  issue,"  as  in  the  case  of  Jesson  v. 
fVright. 

In  another  case,  a  testator  devised  to  his  wife,  all  his  real  Grctton  v. 
and  personal  estate, she  first  paying  his  just  debts  and  funeral  Haward,  6 
expenses;  and,  after  her  decease,  to  the  heirs  of  her  body.  Taunt.  94. 
share  and  share  alike,  if  more  than  one  ;  and,  in  default  of 
issue,  to  be  lawfully  begotten  by  him,  to  be  at  her  own  dis-        [  235  ] 
posal.     The  testator  left  his  wife  and  six  children  him  sur- 
viving.    The  Court  certified  that  the  wife   took   only  an 
estate  for  life,  with  remainder  to  all  the  children  as  tenants 
in  common  in  fee. 

This  case  is  distinguishable  from  all  the  preceding  cases,  Observations 


[  235  ]        II.  12.  iv.]  AN  ORIGINAL  VIEW  [§476,477. 

on  Grrfton  except  llie  last,  in  this  circnmstancc ;  that  there  is  no  pri- 
V.  Hau-ard.  mary  or  paramount  intent,  manifested  by  the  Umitation  over, 
to  let  in  all  the  descendants  of  the  testator  and  his  wife  :  for, 
the  failure  of  issue  is  clearly  a  failure  of  issue  in  the  lifetime 
of  the  wife.  But  still  it  would  seem  that  this  decision  must 
be  regarded  as  overruled  by  Doe  d.  Wilkinson  v.  Fether- 
stone,  where  there  were  words  of  distributive  modification, 
and  no  limitation  over  on  an  indefinite  failure  of  issue,  and 
yet  the  Rule  was  applied. 

4.  Word  '  4.  A  reference  to' the  heirs  by  the  name  of  sons  476 
sons  or  or  daughters,  will  not  be  construed  to  control  the 
daughters,  word  heirs,  "if  it  may  fairly  be  held  to  refer  to  all  the  heirs 
referring  to  jj,  the  sense  only  of  "males"  or  "  females -,"(1^)  or  if  the 
the  heirs,  if  construing  that  word  so  as  to  control  the  word  heirs,  would 
only  used  in  g^^^j^  inconsistent  with  other  parts  of  the  will. 

the  sense  of        ^  testator  devised  to  his  first  son,  for  life;  remainder  to 

r^^    f  °'"  „      trustees  to  preserve  &c.;  and,  from  and  after  his  decease,  to 

S    TisS'  ^'*®  several  heirs   male  of  such  first  son,  so  as  the  elder  of 

p  ^  ^        '  *  such  sons,  and  the  heirs  male  of  his  body,  should  always  be 

p";     ^         preferred  to  the  younger  and  the  heirs  male  of  his  body ; 

Foole,  6        ^.ji^  limitations  to  the  other  sons  and  the  daughters  of  the 

620  ' '   testator,  and  the  heirs  male  of  their  bodies,  the  elder  of  such 

sons  and  daughters  to  be  preferred  &c.     Though  the  word 

sons  in  the  plural  could  only  apply  to  the  sons  of  tlie  first 

son,  yet,  it  was  held,  that  the  first  son  of  the  testator  took 

an  estate  tail :  for,  otherwise,  it  would  be  necessary  to  hold 

that  the  testator  meant  to  give  a  diflerent  estate  to  his  eldest 

son,  from  that  which  all  the  subsequent  limitations  showed 

that  it  was  his  intention  to  give  to  the  other  sons. 

5.  Intention  5.  Nor  will  the  operation  of  the  Rule  be  ex-  477 
[  236  ]        eluded,  in  the  case  of  legal  estates  or  trusts  execut- 

that  thelimi- ed,  by  the  expression  of  an  intention  that  the  limitations 
tations  should  be  in  strict  settlement. 

should  be  in  A  testator  devised  real  and  personal  estate  to  a  feme 
strict  settle-  covert,  for  life,  for  her  independent  use  and  benefit ;  remain- 
ment^  der  to  her  husband,  for  life;  remainder  to  the  heirs  of  her 

See  Section  body,  in  tail;  with  remainders  over;  and  he  declared,  that 
^^-  all   the  aforesaid  limitations  were  intended  to  be  in  strict 

Douglas  V.    settlement.     The  Court  of  Common  Pleas  certified,  that  she 
Congreve,  1  ^q^j^  ^^^  estate  tail  in  the  real  estate.     And  Lord  Langdale, 
Beav.  59.        jyj^  ^^  ^^^^^.  quoting  the  words  of  Lord  Tliurlow  in  Jones  v. 
Morgan,  as  to  the  words,  "for  life,"  that  the  testor,  "  in  all 
cases,  does  mean  so,"  said,  that  the  words,  "  in  tail,"  were 
merely  superfluous ;  and  that,  as  to  the  words  in  strict  settle- 
See  §  489.     ment,  there  was  no  executory  trust  in  this  case;  and  that 
therefore  the  feme  covert  took  an  estail  tail  in  the  real  estate, 
and  the  absolute  interest  in  the  personalty. 

(m)  See  Pierson  v.   Vickers,  5  East,  548,  as  slated  §  475. 


ir.  12.  iv.]  OF  EXECUTORY  INTERESTS.  [§478.        [  23G  ] 

178  6.  "The  Rule  will  l)o  applied  even  in  llio  case  of  C.  Super- 

a  devise  to  or  for  the  settlitiij;  of  lands  on  a  person  added  words 

for  life,  and,  after  his  decease,  to  the  heirs  male  of  liis  body,  usually  oc- 

and  the  heirs  male  of  the   body  of  every  such  heir   male,  curnng  in 

severally  and  successively,  or  severally,  respectively,  and  iti  limiiations  to 

remainder,  as  they  should  be  in  priority  of  birth,  and  seni-  '"^^  ^"^    . 

■^       c  /    \  other  sons  in 

ority  ot  age.(.r)  ■, 

In  one  case,  a  testator  devised  to  fF.  F.  and  his  heirs,  t^  ' 
male,  according  to  their  seniority  in  age,  and  their  respect-  Fetherston 
ively  attaining  the  age  of  21  years,  all  his  estates  real  and  ^-  i  qJ"  , 
personal  in  lands,  houses,  and  tenements,  the  elder  son  sur-  p'.  ' 
viving  of  the  said  IF.  i^.,  and  the  heirs  male  of  his  body  ^^  cVbII"!) 
lawfully  begotten,  always  to  be  preferred  to  the  second  or  gg^'  °  ' 
younger  son  ;  and,  in  case  of  failure  of  issue  male  of  the 
said  W-^  F.  surviving  him,  or  their  dying  unmarried,  and 
■without  lawful  issue  male  attaining  the  age  of  21  years,  then 
over.  It  was  held  by  the  House  of  Lords,  in  consonance 
with  the  opinion  of  the  Judges,  and  in  affirmance  of  the  de-  [  237  ] 
crees  of  the  Courts  of  King's  Bench  and  Exchequer  Cham- 
ber in  Ireland,  that  fF.  F.  took  an  estate  tail.  Lord  Chief 
Justice  Tin(lal,in  delivering  the  opinion  of  the  Judges,  said, 
that  they  thought  the  rule  of  construction,  laid  down  by 
Lord  Al'vanley  in  Foo/e  v.  Foole,  3  Bos.  &  Pul.  G27,  was 
the  safe  and  correct  rule  in  such  cases;  namely,  "That  the 
first  taker  shall  be  held  to  take  an  estate  tail,  where  the  de- 
vise to  him  is  followed  by  a  limitation  to  the  heirs  of  his 
body,  except  where  the  intent  of  the  testator  has  appeared 
so  plainly  to  the  contrary,  that  no  one  could  misunderstand 
it."  That,  applying  that  rule  to  the  principal  case,  they  by 
no  means  thought  that  the  subsequent  words  showed  a  plain 
and  unequivocal  intention  to  reduce  the  estate  tail  in  JF.  F. 
to  an  estate  for  life :  oji  the  contrary,  they  thought  them  at 
least  as  compatible  with  an  explanation  of  what  the  testator 
supposed  to  be  the  course  of  descent  under  an  estate  tail. 
That  the  words,  on  <•  their  attaining  the  age  of  21  years," 
could  not  be  urged  as  an  argument  against  the  estate  in  J^F. 
F.  being  an  estate  tail ;  first,  because  these  words  would 
create  the  same  dilliculty  against  the  holding  the  estate 
given  to  the  sons  of  IF.  F.  to  be  an  estate  tail,  which,  on  all 
hands,  was  allowed  to  be  the  case,  if  IF.  F.  had  not  the 
estate  tail  in  himself;  and  secondly,  because,  if  the  devise, 
in  other  respects,  was  a  devise  in  tail,  the  testator  could  not 
by  interposing  such  a  condition  (if  indeed  it  was  to  be  held 
to  be  a  condition)  create  a  new  estate,  or  a  new  course  of 
descent  not  known  to  the  law.     That  if  the  words  "  heirs 

(x)  Legal  V.  Seioell,  1  Eq.  Ab.  395,  as  stated,  Fcarne,  113.  Jonen  v.  Mor- 
gan, 1  Uro.  C.  C.  276,  as  stated,  Fearne,  134.  See  also  Saijer  v.  Musltrman, 
Anib.  341,  as  stated,  Fcarne,  1(32. 


[  237  ]        II.  12.  iv.]  AN  ORIGINAL  VIEW      [§479—483. 

mule,''  were  to  be  construed  "  sons,"  the  construction  would 
be  to  abandon  a  direct  devise  in  tail  to  fV.  F.,  in  order  to 
let  in  a  devise  of  an  estate  tail  by  implication  only  to  his 
first  and  other  sons.  And  that  if  the  sons  of  IV.  F.  took 
estates  tail,  as  purchasers,  it  was  far  from  clear  that  they 
could  take  more  than  contingent  remainders  in  tail ;  viz.  on 
the  contingency  of  each  son's  surviving  his  father ;  and  it 
was  very  difficult  to  suppose  that  the  testator  could  intend, 
to  postpone  the  whole  of  the  eldest  son's  issue  to  that  of  the 
second. 

[  238  ]  PROPOSITION   III. 

III.  Third  But,  if  there  are  any  words  referring,  not  merely  479 

general  pro-  to  the  mode  of  succession,  but  to  the  objects  of  suc- 
position,  cession,  and  clearly  and  unequivocally  >' explaining  or  indi- 
showing  eating  them  to  be  individuals  other  than  persons  who  are  to 
where  the  ^^ke  simply  as  heirs  general  or  special  of  the  ancestor  ;(^) 
Rule  does  ^i-,g  fjj,|g  ^y\\\  ^joj  apply.  For,  these  words  thereby  negative 
not  apply.  ^]-,g  existence  of  the  primary  intent,  which  would  otherwise 
See  §  429-  |3e  furnished  by  the  technical  word  heirs,  in  connexion  with 
450.  j^jg  estate  of  the  ancestor;  and  thus  leave  but  one  intention 

to  be  accomplished ;   namely,  the  intention  that  the  heirs 

should  take  by  purchase. 
Indication  of      Though  this  explanation  or  indication  must  be  480 

non-applica-  clear  and   unequivocal;  yet  it  may   be  either,  1. 
tion  ofRule   Direct;  or,  2.  Indirect.     Thus, 

either  direct        i.  The  Rule  will  not  be  applied  if  there  are  any  481 

or  indirect,  words  directly  and  immediately  referring  to  the 
1.  Direct  persons  who  are  to  succeed,  and  clearly  and  unequivocally 
explanation  explaining  them  to  be  persons  who  are  to  take,  not  simply 
or  indication  ^^  \xe\xs  general  or  special  of  the  ancestor,  but  as  his  sons, 
that  the  per-  daughters,  or  children  ;  or  as  his  heir  apparent,  or  heir  pre- 
sonswho  are  g^^^^-jpjjyg  .  q^  ^s  the  person  first  answering  the  description 
to  succeed,  ^^  ^^j^  j-^^jj.  greneral  or  special,  and  the  heirs  general  or  special 
are  not  per-      r        i    i    • 

, '        01  such  heir, 
sons  who  are 

to  take  simply  as  heirs  general  or  special. 

Lowe  V.  Thus,  where  an  estate  was  devised  to  Ji.  and  482 

Duties,  2  his  heirs  lawfully  to  be  begotten ;  thai  is  to  say, 
Ld.  Raym.  to  the  first,  second,  third,  and  any  other  son  and  sons,  suc- 
1.561;  as  cessively,  as  they  should  be  in  seniority  of  age,  and  priority 
stated,  ^  of  birth,  the  eldest,  always,  and  the  heirs  of  his  body,  to  be 
tearne,  153.  preferred  before  the  youngest,  and  the  heirs  of  his  body;  it 
See  §  476.     was  held  that  ^2.  was  tenant  for  life,  with  remainder  to  his 

first  and  other  sons,  successively,  in  tail. 
Goodtitle  d.       And  where  a  testator  devised  estates  to  M.  D.  483 

Sweet  V.        for  her  life,  without  impeachment  of  waste,  re- 

Herring,  1 

East,  164, 

affirmed  by  {y)  See  Fearne,  188,1 94—1 99. 


II.  12.  iv.]  OF  EXECUTORY  INTERESTS.  [§484,485.        [  238  ] 

mainder  to  trustees  to  preserve  contingent  remainders,  and  House  of 
from  and  after  her  decease,  then  to  the  heirs  male  of  the  Lords, 
body  of  the  said  M.  D.  to  be  be2:otten,  severally,  snccessively.  printed 
and  in  remainder,  one  after  another,  as  they  and  every  of        [  239  ] 
them  should  be  in  seniority  of  age,  and  priority  of  birth,  the  Cases,  1801, 
elder  of  such  sons,  and  the  heirs  male  of  his  body,  being  See  also 
always  preferred  before  the  younger  of  such  son  and  sons,  y}^'-^  ^• 
and  the  heirs  male  of  his  and  their  body  and  bodies;  and  ^o^^'n    •*^^" 
for  want  of  such  issue,  then  to  the  daughters,  &.c. ;  and  in      '  ;  ^^^"^' 
default  of  such  issue,  over.  stated 

Again,  by  a  marriage  settlement,  lands  were  limited  to  pga,.pg  151  _ 
the  husband,  for  life  ;  remainder  to  the  wife,  for  life;  re-  g^^  c  ,j-q^ 
mainder  to  the  heirs  of  the  body  of  the  husband,  on  the  body  -^     , 
of  the  wife  to  be  begotten,  and  their  heirs;  and  if  more  chil-  ;j,^^^/g„   q 
dren  than  one,  equally  to  be  divided  among  them,  to  take  gj^  2Q6. 
as  tenants  in  common  ;  and,  for  default  of  such  issue,  to  the 
wife  and  her  heirs.     Sir  L.  Shadwcll,  V.  C,  said,  that  if  it 
had  iiot  been  for  the  words,  "  and  if  more  children  than  one," 
the  husband  would  have  taken  an  estate  in  tail  special,  not- 
withstanding the  superadded  words  of  limitation  ;  but  that 
the  words,  "and  if  more  children  than  one,"  must  be  taken 
to    be    interpretative  words,  showing   that  "heirs"  meant 
"  children  ;"  and  hence,  that  the  words,  "  for  default  of  such 
issue,"  meant  "for  default  of  such  children;"  and  conse- 
quently the  children  took,  by  purchase,  estates  in  common 
in  fee  in  the  freeholds  and  copyholds,  and  the  absolute  inter- 
est in  the  leaseholds. 

484  2.  The  Rnle  will  not  be  applied  if  there  are  any  2.  Indirect 
words   mediately  or  indirectly,  yet  unequivocally,  explanation 

denoting,  that  the  persons  who  are  to  succeed  are  individuals  or  indication, 
other  than  persons  who  are  to  take  simply  as  heirs  general 
or  special  of  the  ancestor. 

The  reported  cases  exhibit  six  ways  at  least  in  which  the 
word  heir  or  heirs  has  been  thus  indirectly  explained  and 
divested  of  its  most  usual  meaning. 

485  (1)  ^By  superadding  words  of  limitation,  in  fee  (1)  Word 
or  in  tail,  to  the  word  heir,  when  used  in  the  sin-  heir,  with 

gular  number.(z)  superadded 

It  is  true,  that  the  word  heir,  as  we  have  seen,  may  be        [  240  ] 
used  as  a  nomen  collectivum;  but  since  the  heir  may  also  words  of 
properly  be  deemed  to  be  persona  designala,  and  such  is  in  limitation. 
fact  the  natural  meaning  of  the  word,  when  there  are  super-  See  §  4«3-4. 
added  words  of  limitation  to  the  heirs  general  or  special  of 
such  heir;  it  is  to  be  presumed  that  the  testator  intended  the 

(j)  Archer's  Case.  1  Co.  66;  as  stated,  Foarne,  150.      Willis  v.  Iliscox,  4 
M.  &  C.  197.     Cheek  or  Clark  v.  Day  or  Davi/,  Moor,  593  ;  as  stated,  Fearne, 
150.      Walker  v.  Snow,  Palm.  359;  as  stated,  Fearne,  151. 
Vol.  II.— 25 


[  210  ]         II.  12.  i v.] 


AN  ORIGINAL  VIEW      [§4S6— 4S8a. 


(2)  Limita- 
tion to  the 
heir  for  life. 
See  §  460. 

(3)  Super- 


vhich  limit 
the  estate  to 
persons  of  a 
diflerent  sex. 
See  §  474. 


distinction  between  the  singular  and  plural  number,  and  did 
not  use  the  word  heir  as  nomen  colhctivum. 

(2) -'By  expressly  hmiting  to   tlie  heir  in   the  486 

singular  number  for  life.(rt) 

111  this  case,  the  inheritance  is  not  limited  ;  and  therefore 
tiie  heir  could  not  take  simply  as  heir ;  for,  an  heir  is  one 
upon  whom  the  law  casts  the  inheritance  upon  the  decease 
of  the  ancestor. 

(3)  By  superadding  to  the  first  words  of  inherit-  487 
added  words  ance,  other  words  of  limitation,  which   limit  an 
of  limitation  estate  in  such  a  manner  as  to  be  descendible  exclusively  to 

persons  of  a  different  sex;  as,  where  land  is  limited  to  the 
heirs  male,  and  their  heirs  female. 

These  superadded  words  clearly  show,  that  the  heirs  male, 
the  heirs  first  named,  were  not  intefided  to  take  simply  as 
heirs  special ;  since,  if  they  were  to  take  simply  in  that  cha- 
racter, they,  and  they  alone,  would  take  the  inheritance ; 
or,  in  other  words,  the  inheritance  would  devolve  from 
time  to  time  upon,  and  be  exclusively  and  perpetually 
enjoyed  by,  heirs  male;  whereas  the  inheritance,  by  the 
express  words,  is  to  go  to  the  heirs  male,  and  their  heirs 
female. 

(4)  By  prescribing  for  the  heirs  general  or  spe-  488 
cial,  a  distributive  mode  of  taking,  and  also  super- 
adding words  of  limitation  :  as  ^to  Jl.  for  life,  remainder  to 
the  heirs,  of  his  body,  as  well  females  as  males,  as  tenants 
in  common,  (or  share  and  share  alike,  or,  without  any  re- 
spect to  be  had  in  regard  to  seniority  of  age  or  priority  of 
birth,)  and  their  heirs  and  assigns  for  ever. (6) 

The  mere  addition  of  words  of  distributive  modification 
would  be  equivocal :  for,  the  grantor  or  testator  might  have 
erroneously   supposed   that  the  heirs   might   take  in   that 
character,  and  yet  in  a  partitive  mode ;  but  the  engrafting 
of  superadded  words  of  limitation,  besides  the  addition  of 
words  of  distributive  modification,  shows  clearly  that   he 
meant  by  tlic  first  named  heirs,  the  children  of  the  ances- 
tor, who  are  sometimes  so  termed,  as  having  the  capacity 
of  becoming  heirs  of  the  ancestor,  either  in  succession,  if 
males,  or  contemporaneously,  if  females. 
[h\  Words         (^)  ^y  prescribing  a  distributive  mode  for  the         488a 
ofdistribu-     heirs  general  or  sjiecial  to  take,  and  also  limiting 
live  modifi-     over  the  property  in  case  the   heirs,  under  the    referential 
cation,  with    designation  of  such  issue,  should  die  before  a  certain  age. 
a  limitation         A  testator  devised  to  his  daughter  M.,  and  the  heirs  of 

(a)  White  v.  Collins,  Com.  R,  289;  as  stated,  Fearne,  153. 

(6)  Doe  V.  Laming,  2  liurr.  1100,  as  stated,  Fearne,  154.  Criimp  v.  Nor- 
wood, stated  §  438a.  The  same  point  was  established  by  Doe  v.  Ironmonger, 
stated  §  "387  ;  and  Right  v.  Creber,  5  Bar.  &  Cres,  860. 


(4)  Words- 
of  distribu- 
tive modifi- 
cation, with 
[  241  ] 
superadded 
words  of  li- 
mitation. 
See  §  475. 


II.  12.  iv.]    OF  EXECUTORY  INTERESTS.        [§48Sa.        [211   ] 

her  body  begotten  or  to  be  begotten,  as  tenants  in  commot) ;  over  in  case 
but  if  such  issue  should  die  before  he,  she,  or  they  attained  of  tho  di-ath 
21,  then  to  his  son  J.,  in  fee.     And  then  he  devised  another  of  such  issue 
estate  to  his  son,  J.,  and  to  the  heirs  of  his  body  begotten  or  ""'^^r  a  cen- 
to be  begotten  ;  but,  if  he  died  without  issue,  or  such  issue  t^'"  ^^.l 
all  died  before  he  or  they  attained  21,  then  to  M.,  and  the  ^^  ^^ 
heirs  of  her  body  begotten  or  to  i)e  begotten;  such  issue,  if  ^"e  d^ 
more  tiian  one,  to  take  as  tenants  in  couitnon.     It  was  held,  }J"^^,^' 
that  M.  took  for  life  only,  in  the  first  estate,  with  remainder  0'^  JJ 
to  her   children    as    purchasers;  the   words   "such  issue,"'    '^'^  ' 
taken  in  connection  with  the  event  spoken  of,  that  of  such 
issue    dying  before  he,  she,  or  they  attained  21,  clearly 
showing  that  the  words  "  heirs  of  the  body"  were  equiva- 
lent  to  children  of  her  body ;  and  there  being  a  particular 
intent  that   the  issue  should  take  as  tenants  in   common,        [  242  ] 
which  was  inconsistent  with  an  estate  tail,  and  no  oilier 
paramount  general  intent. 

This  decision  was  impeached  by  Lord  Redesdale  in  ""  Jes-  Observations 
son  V.   Wright ;{c)  but  His  Lordship  appears  to  have  been  on  Doe  d. 
labouring  under  some  confusion  of  ideas  upon  the  subject.  Strong  v. 
He  remarked,  that  the  provision,  in  case  such  issue  should  Goff. 
die  before  21,  seemed  to  him  so  far  from  amounting  to  a 
declaration  that  the  testator  did  not  mean  heirs  of  the  body 
in    the   technical   sense,   that   he   thought   they    peculiarly 
showed  that  he  did  so  mean;  for,  they  would  otherwise  be 
wholly  insensible:  if  they  did  not  take  an  estate  tail,  it  was 
perfectly  immaterial  whether  they  died  before  or  after  21. 
Now  it  is  true  that  these  words  would  seem  to  show  that 
the   children    took   an    estate-tail;    but    they   also   clearly 
showed,  as   Lord  Ellenborough,  C.  J.,  observed,  that  the 
words,  "  heirs  of  the  body,"  to  which  they  referred,  meant 
children;  and  consequently  that  the  mother  did  not  take  an 
estate   tail :    and    the    only   question    which    was   actually 
raised,  seems  to  have  been,  whether  the  mother,  who  was 
dead,  took  for  life  only,  or  in  tail.     The  question,  whether 
the  children,  who  were  held  to  take  by  purchase,  took  an 
estate  tail,  does  not  appear  to  have  been  raised  or  decided. 

Again;  a  testator  devised  gavelkind  land  to  his  nephews.  Crump  v. 
IV.  C.,J.  C.,and  R.  C,  equally  between  them,  during  their  yoncood,! 
respective   lives,   as   tenants  in   common ;  and,   after  their  Taunt.  362, 
several   and  respective  decease,  he  devised  the  part  and  2  Marsh, 
share  of  him   or   them   so  dying,  unto  the  heirs  lawfully  IGl. 
issuing  of  his  or  their  body  and  bodies;  and  if  more  than 
one,  equally,  as  tenants  in  common;  and  if  but  one,  to  such 
only  one;  and  to  his,  her,  or  their  heirs  and  assigns  for  ever. 
And  if  any  of  his  said   nephews  should  die  without  such 

(c)  2  Bligh,  51;  stated  §  475.      See  remarks  on  this  case  in  Bennett  v.  Earl 
of  Tankercilc,  19  Ves.  170;  stated  §  475. 


[  242  ]        II.  12.  v.]  AN  ORIGINAL  VIEW  [§488b,  488c. 

issue,   or   leaving   any  such,  they  all  should   die   without 
attaining    21,  then  the  share  of  him  and   them  so  dying 
unto  the  survivor  and  survivors  of  his  said  nephews  &c. 
Lord  Chief  Justice  Gibbs,  who  delivered  the  judgment  of 
the  Court,  said,  that  it  was  agreed   on  all   hands,  that  this 
[  243  ]         was  a  devise  to  fV.  C,  for  life;  and  if  he  had  children,  then, 
to  them  in  fee;  if  he  had  no  children,  then,  the  estate  was  to 
See  §  128-     go  to  J.  C.  and  R.  C.  (7  Taunt.  370.)     That  this,  therefore, 
136a.  like   the  case   of  Doe  d.  Davy  v.  Burnsall,  was  a  contin- 

gent remainder  wiih  a  double  aspect  {Ih.  372);  and  a 
portion  of  the  reversion  having  descended  on  PV.  C,  so 
much  of  the  contingent  remainder  as  was  co-extensive  with 
that  portion  of  the  reversion,  was  destroyed  ;  because  the 
See  §^766,  particular  estate  supporting  the  remainder  was  destroyed 
777,  779.       j^y  {i^g  iii^ioi^  Qf  the  particular  estate  and  the  reversion.  {lb. 

371.  373.) 
(6)Byblend-       (5)  «*  By  blending  into  one,  a  limitation  to  the         488b 
ing  a  limita-  heirs  of  the  body  of  the  tenant  for  life,  and  a  limi- 
tion  to  the      tation  to  the  heirs  of  the  body  of  another  person,  where  the 
heirs  ot  the    hgj,.g  ^f  ^he  body  of  such  other  person  could  not  take  other- 
o  y  o       o-  ^yjgg  than  by  purchase;  and  by  superadding  words  of  limi- 

^J  P*"^      '   tation  to  the  heirs  and  assigns  of  all  such  heirs  of  the  body 
and  super-        ,,      ,  ,v  °  ^ 

atldingwords  alike.(ar) 

'"''''""=''°"'  SECTION  THE  FIFTH. 

General  Observation  on  the  Jlid  afforded,  in  the  applica- 
tion of  the  Rule,  by  Implication  from  a  Limitation 
over  on  Failure  of  Issue. 

In  the  majority  of  the  cases  above  stated  where  488c 
it  was  most  difficult  to  apply  the  Rule,  the  Courts 
were  aided,  in  their  application  of  the  Rule,  by  the  exist- 
ence of  a  limitation  over  on  an  indefinite  failure  of  issue 
generally,  or  on  an  indefinUe  failure  of  such  issue  as  were 
before  spoken  of,  and  intended  to  be  capable  of  inheriting 
under  the  prior  limitations.  And  the  Courts  of  course 
See  §  564a  gladly  laid  hold  of  the  implication  of  a  primary  or  para- 
564c.  mount  intention  to  admit  all  the  descendants  generally  or  of 

the  given  description,  so  far  as  the  rules  of  descent  would 
permit,  arising  from  such  a  limitation  over,  where  there 
was  any  such  limitation,  rather  than  rest  their  decision,  in 
giving  an  estate  tail  to  tlie  ancestor,  upon  the  single  opera- 
tion of  the  Rule.  But  still,  it  is  conceived,  that  even  if,  in 
these  cases,  there  had  been  no  such  limitation  over,  the 
[  244  ]  decision  would  have  been  the  same.  For,  though  it  would 
then  have  been  less  clear  that  an  estate  tail  should  be  given 
to  the  ancestor,  yet  upon  a  due  consideration  of  the  prin- 

{d)  Mlgood  V.  Withers,  as  stated,  Fearne,  120. 


ir.  12.  vi.]  OF  EXECUTORY  INTERESTS.  [§489—493.        [  214  ] 

ciples  contained  in  the  third  section,  it  might  have  been 
seen  that  the  cases  above  referred  to  were  cases  for  the 
apphcation  of  the  Rule. 


SECTION  THE  SIXTH. 

The   Apjilication   and   Non-application   of  the   Rule,  in 
Cases  of  Trusts  Executory. 

489  "An  executory  trust,  as  opposed  to  a  trust  exe-  Defiiiition  of 
cutcd,  is  a  trust  raised  by  a  stipulation  or  direction,  an  executory 

in  marriage  articles,  or  in  a  deed  or   will,  to  make  a  con-  trust, 
veyance,  settlement,  or  assurance,  to  uses,  or  upon  trusts, 
which  do  not  appear  to  be  formally  and  finally  declared 
by   the   instrument   containing   such   stipulation   or   direc- 
tion.(«) 

490  I.  ''Tlie  Rule  is  not  applied  in  the  case  of  ex-  I.  Rule  as  to 
ecutory  trusts  created  by  will,  if  there  is  a  clear  executory 

indication   of  an    intent   that    it  should  not   be  applied. (6)  trusts  crea- 
But,  in  tiie  absence  of  any  such  indication,  it  will  be  ap-  ted  by  will, 
plied. 

491  'In  the  case  of  trusts  executed,  the  limitations  Ground  of 
may  be  deemed   to  receive   their  intended  shape  distinction 

from  tiie  words  of  the  deed  or  will  itself.     But,  in  the  case  between 
of  trusts  executory,  the  party  may  fairly  be  understood  to  trusts  exe- 
leave  the  limitations  to  be  perfected  by  the  conveyance,  set-  cuted  and 
tlement,  or  assurance,  stipulated  or  directed  by  him,  and  to  trusts  execu- 
have  intended  that  the  conveyance,  settlement,  or  assurance,  ^°0'- 
should  avoid    or    correct  any   relative   inconsistencies,   or 
technical  obstacles,  arising  from  impropriety  of  expression, 
to  the  apparent  general  scope  of  the  conveyance,  settlement, 
or  assurance,  so  directed  by  him.(c) 

492  Hence,  in  cases  of  trust  executory,  the  Court  has        [  245  ] 
not  applied  the  Rule  where  the  testator  ''expressed  Illustrations 

his   desire,  that  it   should   never  be  in  the    power  of  the  of  the  fore- 
ancestor  to  dock  the  entail  ;(f/)  or  ''  where  his  estate  for  life  going  rule, 
was  without  impeachment  of  waste,  and  there  was  a  limita- 
tion to  trustees  during  his  life  to  preserve  contingent  remain- 
ders.(e) 

493  But  the   Courts  will  apply  the  Rule   to  trusts 
executory  created  by  will,  even  where  the  word 

(a)  See  White  v.  Thornburgh,  2  Vern.  702;  and  Austen  v.  Taylor,  Amb. 
376  ;  as  stated,  Fearnc,  110,  133 — 4.  And  see  Prest.  View  of  the  Rule,  126 — 
130,  and  cases  there  cited.     And  Fearne,  137 — 144. 

(b)  White  V.  Carter,  Amb.  670,  as  stated,  Fearne,  184. 

(c)  Fearnc,  141,  144. 

(d)  Leonard  v.  Earl  of  Sussex,  2  Vern.  520,  as  stated,  Fearne,  115. 
{e)  Papilton  v.  f'oice,  2  V.  W.  471,  as  stated,  Fearnc,  115. 


[  245  J        II.  12.  vi.]  AN  ORIGINAL  VIEW        [§494—496. 

heir  is  used  in  the  singular,  if  there  are  no  particular  indica- 
tions of  a  contrary  intent. 
Blackhiirnc        Thus,  where  real  estate  was  devised  in  trust  for  a  son  of 
V.  Stables,  2  the  testator's  nephew,  at  the  age  of  24  ;  with  limitations 
V.  (k  B.  367.  over,  if  he  had  no  son  ;  and  with  a  direction  that  the  execu- 
tors should  not  give  up  their  trust  till  a   proper  entail  be 
made  to  the  male  heir  by  him.     Sir  W.  Grant,  M.  R.,  held, 
that  this  was  an  executory  trust;  bat  that  a  son  who  was 
in  ventre  sa  mere  took  an  estate  tail.     He  observed,  that  in 
the   case   of  a   will,  there   was  no  presumption  that  one 
quantity  of  interest  was  meant  more  than  another ;  for,  the 
subject   being  mere   bounty,   the   intended   extent  of  that 
bounty  can  be  known  only  from  the  words  in  which  it  is 
given. 
II.  Rule  as         J  I.  In  the  case  of  executory  trusts  created  by  494 

to  trust  jcxe- niarriage    articles,    the    Court   of  Chancery    will 
cutory  ere-     refuse  to   apply   the   Rule,   even   in  the   absence   of  par- 
ated  by  mar-  (Jcular  indications  of  an  intent  that  it  should  not  be  applied, 

'".^^  '  1.  In  those  cases  where  it  is  not  in  the  power  of  either 

with  the  ex-   parent,  without  the  other,  to  bar  the  issue. 

ceptions  2.  Where  the  issue  are  otherwise  effectually  provided  for 

hereto.  |^y,  ^^^  articles;  or  it  appears,  from  other  limitations,  that  the 

parties  knew  and  intended  the  distinction  between  words 

which  give  the   parent  an  estate  for  life  only,  and  those 

which  would  give  him  an  estate  tail. 

3.  Where   a  trust,  created   by  a  formal  settlement  not 
expressed  or  not  clearly  appearing  to  be  made  in  pursuance 
of  the  articles,  is  substituted  for  the  articles. 
[  246  ]  The  reason  for  not  extending  the  Rule  to  trusts  495 

Distinction     executory,  applies   with   peculiar  force    to   those 
between  created  by  marriage  articles  ;  'because  marriage  articles  are 

trusts  exe-  considered  as  mere  heads  of  agreement ;  and  a  principal 
cuted  and  intention  is,  to  secure  an  effectual  provision  for  the  issue, 
trusts  execu-  ^jj^  ^j.^  g^jj  purchasers  for  valuable  consideration,  and  not 
tory  IS  more  ^^^^^  volunteers,  like  devisees.(/) 

,°j'.  Hence,  «  where  it  is  agreed  to  limit  lands  to  the  496 

the  case  of     '^"^band  for  life,  remainder  to  the  heirs  of  his  body, 
those  created  ^^  ^^^  intended  wife,(^)  or,  ''to  the  wife  for  life,  remainder 
by  marriage  ^^  ^^^  ^^^^^  °^  ^^^^  body,  by  her  intended  husband, (A)  or 
settlement.     '  ^^  ^^e  husband  and  wife  for  life,  remainder  to  the  heirs 
Illustrations  of  their  bodies  ;(z)    these    words    are    construed   to   mean 

(/)  Fearne,  112. 

(g)  Trevor  v.  Trevor,  1  Eq.  Ab.  387;  and  2  Brown's  Cases  Pari.  122  ;  as 
stated,  Fearne,  90 — 92, 

(//)  Jones  V.  Langhton,  1  Eq.  Ca.  Ab.  392,  as  stated,  Fearne,  93. 

(z)  Cusack  V.  CusacJf,  1  Brown's  Cases  Pari.  470 ;  and  Nandick  v.  Wilkes, 
1  Eq.  Ab.  393,  c.  5;  1  Gilb.  Eq.  Rep.  114;  as  stated,  Fearne,  93. 


II.  12.  vi.]  OF  EXECUTORY  INTERESTS.  [§4fi7— 101.        [  24G  ] 

first  and  otlier  sons  of  the  marriage,  and  the  heirs  of  their  ofthe  second 
bodies.  forogoing 

497  And  ^  where  it   is  agreed  to  hmit  lands  to  the  I'^le. 
husband   for  hfe,  remainder  to  tlie  heirs  male  of 

liis  body,  remainder  to  the  heirs  female  of  his  body,  the 
expression  heirs  female  will  be  taken  to  denote 

498  daughters  ;(A-)  lliough  a  remainder  to  the  heirs  of 
the  body,  following  one  to  the  first  and  other  sons, 

will  not  be  so  construed,  where,  at  least,  an  express  pecu- 
niary   provision  is   tnade    for  the   daughters ,  for,    it    may 
extend  to  the  daughters  of  sons,  as  well  as  the  daughters  of 
the  marriage. (/) 

499  And  '"post-nuptial  settlements,  and  even  pre- 
nuptial  settlements,  if  purporting  or  appearing  to 

be  made  in  pursuance  of  such  articles,  but  conferring  an 

estate  tail  on  the  ancestor,  will  be  rectified  accordingly, (m) 

"except  against  a  purchaser  for  valuable  consideration  with-        [  247  ] 

out  notice.(?z) 

But,  as  already  intimated, 

500  1.  The  Rule  takes  place  in  marriage   articles,  Cases  consii- 
"where  the  parent  may  take  an  estate  tail,  without  luting  the 

leaving  it  in  the  power  of  either  parent  singly,  to  bar  the  first  excep- 
issue,  either  during  or  after  the  coverture:  as,  where  the  tion  to  the 
wife  alone  takes  an  estate  tail  ex  provisione  viri;  in  which  second  of  the 
case,  as  the  husband  takes  no  estate  tail,  he  cannot  bar  the  foregoing 
issue,  either  during  the  coverture,  or  afterwards;  and  the  r^^'es. 
wife,  of  course,  cannot  bar  it  during  the  coverture  without 
his  consent ;  nor  can  she  bar  it  afterwards,  because  she  is 
prevented  by  the  statute  of  Hen.  VII. (o) 

501  2.  The  Rule  has  also  been  allowed,  i*  where,  in  2.  Case.scon- 
the  articles,  the  issue  are  provided  for  by  another  stituting  the 

fund  or  estate,  limited  in  strict  settlement, (;;)  or  ^in  such  a  second  ex- 
way,  that  neither  parent  could  bar  it  alone  \{q)  or,  by  an  caption. 


(li)   West  V.  Errissey,  2  P.  W.  349,  as  stated,  Fearne,  100,  101. 

(/)  Fearne,  101—104;  and  Poivell  v.  Price,  2  P.  W.  535,  as  there  stated. 

(m)  Streatficld  v.  SlreatfieUl,  Cas.  Temp.  Talb.  176,  as  stated,  Fearne,  92. 
Honor  v.  Honor,  2  Vern.  658  ;  1  P.  W,  123,  as  stated;  Fearne,  98.  West  v. 
Errissey,  2  P.  W.  349,  as  stated,  Fearne,  100.  Roberts  v.  Kingsley,  1  Ves. 
Sen.  238,  as  stated,  Fearne,  104,  105;  overruling  Burton  v.  Hastings,  Chlb. 
Eq.  Rep.  113,  as  stated,  Fearne,  99. 

(n)  Fearne,  108,  109;  and  Warwick  v.  Waricick, 'S  Atk.  291,  as  there 
stated. 

(o)  Fearne,  94.  And  Honor  v.  Honor,  1  P.  W.  123  ;  ^^llateley  v.  Kemp, 
cited  2  Ves.  Sen.  358 ;  Green  v.  Elkins,  2  Atk.  473 ;  and  Highway  v.  Banner, 
1  Bro.  C.  C.  584,  as  stated,  Fearne,  94—96. 

(p)  Chambers  V.  C ha jnb er s,  Vitz-Gihh.  Rep.  127;  2  Eq.  Ab.  3o,  c.  4 ;  as 
stated,  Fearne,  90. 

{q)  Howell  V.  Howell,  2  Ves.  Sen.  358,  as  stated,  Fearne,  97. 


[  247  ]        II.  13.1  AN  ORIGINAL  VIEW  [§502—504. 

express  pecuniary  provision ;  because  these  circumstances 
sliow  that  the  parties  themselves  knew  and  intended  the 
distinction. 
3.  The  third       3.  And  where  both  articles  and  settlement  are  502 

exception.  previous  to  marriage,  the  settlement,  unless  ex- 
pressed to  be  made  in  pursuance  of  the  articles,  will  control 
the  articles,  and  the  words  will  be  left  to  their  legal  opera- 
tion; because  it  will  be  considered  to  be  a  new  agreement 
respecting  the  terms  of  the  marriage,  which  the  parties  are 
at  liberty  to  make  before  marriage,  though  not  afterwards. 


[  248  ]  CHAPTER  THE  THIRTEENTH. 

THIRD  EXCEPTION  FROM  THE  FOURTH  CLASS  OF  CONTINGENT 
REMAINDERS,  WHERE  REAL  ESTATE  IS  DEVISED  TO  A  PER- 
SON AND  TO  HIS  ISSUE,  AND  THE  WORD  ISSUE  IS  CONSTRUED 
TO  BE  A  WORD  OP  LIMITATION,  BY  ANALOGY  TO  THE   RULE 

IN  Shelley's  case,  and  under  the  cy  pres  doctrine. 

Difficulty  of  Perhaps  there  is  no  one  single  point,  in  the  whole  503 

construing  range  of  legal  learning,  involved  in  more  uncer- 
devisestoor  tainly  and  difficulty,  than  that  of  the  construction  of  the 
for  a  person  word  issue  in  express  or  implied  devises  to  or  for  a  person 
and  his  issue,  and  his  issue.  But  yet,  after  a  patient  comparison  of  the 
express  or  cases,  and  a  full  consideration  of  the  distinctions  which 
implied.  principle  would  seem  to  suggest,  the  construction  of  such 

devises,  may,  it  is  conceived,  be  reduced  to  a  system  har- 
monising almost  all  the  cases,  and  commending  itself  to 
reason  and  the  analogy  of  law. 
Where  the         I.  Where  real  estate  is  devised,  either  directly  to,  504 

word  issue  is  or  by  way  of  executed  trust  for,  a  person  and  his 
a  word  of  li-  issue,  whether  in  one  unbroken  limitation,  or  in  two  distinct 
mitation,  in  limitations,  the  word  *  issue  will  be  construed  a  word  of  limi- 
the  case  of  itation,(rt)  so  as  to  confer  on  the  ancestor  an  estate  tail,  if 
direct  de-  there  are  no  expressions  clearly  showing,  that,  by  issue,  the 
vises  and  testator  meant  children,  or  particular  individuals  among  the 
trusts  exe-  descendants  of  the  ancestor,  and  no  expressions  indicative  of 
cuted.  g^^  intent  that  the  issue  should  take  by  purchase,  or  none  but 

See  §  489,     ^^^^^  ^^^  capable  of  being  resolved  into  the  mere  redundant 

S^^f  ".r.o      expression  of  that  which  would  be  included  in  an  estate  tail 
See  b  403.      .     ' 

^  m  the  ancestor. 


(a)  But  sec  Williams  v.  Jekyl,  and   Elliott  v.  Jekyl,  2  Ves.  Sen.  681  ;  as 
stated,  Fearne,  499  ;  wiiich  was  a  case  of  a  lease  for  lives. 


II.  13.]        OF  EXECUTORY  INTERESTS.  [§505—510.        [  219  ] 

505  II.  But  if  there  arc  any  expressions  clearly  show-  Where  the 
ing,  tliat,  by  issue,  the  testator  meant  children,  or  word  issue  is 

particular  iiuJividualsanioui^  his  descendants,  or  any  expres-  a  word  o( 
sions  indicative  of  an  intent  absolutely  inconsistent  with,  or  purchase,  in 
not  incUided  in,  an  estate  tail  in  the  ancestor;  then, tlie word  J,;!'^^ j"" /"' 
issue  will  be  construed  a  word  of  purchase,  if  the  issue  may  ^.^^^  ^^^ 
take  as  purchasers  consistently  with  the  rule  against  perpe-  ^^^^gjg  ^^(,. 
tuities;  and  the  ancestor  will  take  an  estate  f<>i* ''^e,  with  ^^^^ 
a  contingent  or  a  vested  remainder  to  his  issue,  as  the  case  g^^  ^  403.4, 
may  be.  .  5:j3a. 

506  Or,  to  embracie  both  rules  in  one  short  proposi-  ^^^,^  ^^^_ 

tion  : —  braoinif  both 

Where  real  estate  is-devised, either  directly  to,  or  by  way  ^i^^,  preccd- 
of  executed  trust  for,  a  person  and  his  issue,  the  word  issue  ■^^^^  ^uk-s. 
will  be  construed  a  word  of  limitation,  so  as  to  confer  an 
estate  tail  on  the  ancestor,  unless  there  are  expressions  itne- 
quivncaVy  indicative  of  a  contrary  lawful  intent. 

507  "  The  word  issue,"  as  Mr.  Baron  Alderson  justly  Different 
remarked,  <ms  used  in  different   senses,  either  as  senses  of  the 

including  all  descendants or  as  confined  to  imme-  word  issue. 

diate  descendants,  or  some   particular  class  of  de-  "  Issue  is  a 

508  scendants  livine  at  a  given  time."     And,  as  Lord  word  either 
Chief  Justice  Wilmot  observed,  in  Roe  v.   Grci^;,  of  purchase 

2  Wils.  322,  and  Lord   Kenyon,  C.  J.,  in  Doe  d.  Cooper  v.  or  of  limita- 

Collis,  4  Durn.  &  E.  294,  "in  a  will,  issue  is  either  a  word  tioninawiU; 

of  purchase  or  of  limitation,  as  will  best  answer  the  inten-  but  always  a 

tion  of  the  devisor,  though,  in  the  case  of  a  deed,  it  is  uni-  '^^'o™  °'  P"^* 
11  1    V  1  J)  chase  in  a 

versally  a  word  ot  y)urchase."  .     , 

509  ''The   word  issue   is  a  word  of  purchase   in  a  ^^  ' .    . 
deed -,(6)  because,  in  a  deed,  no  word,  except  the  ^^  hy  't  "s  a 

word  heirs,  will  pass  an  estate  of  inheritance ;  and  hence  ^'^^  ^}  P"'"" 
the  word  issue  cannot  there  be  a  word  of  limitation.      It  is  ^"^^^  ^"  ^ 
therefore  a  word  of  purchase,  in  this  case;  because  that  is 
the  only  construction  by  which  it  can  become  operative,  and 
not  because  it  is  aptly  a  word  of  purchase. 

510  For,  in  consequence  of  its  ambiguity  and  latitude  It  is  ill  adapt- 
of  meaning,  it  has  been  considered  by  some,  as  ed  for  a  word 

extremely  unfit  for  a  word  of  purchase,  unless  assisted  by  of  purchase, 
other  expressions.     A  word  of  purchase  should  be  deter-  See  §  403. 
minate  ;  whereas  the  word  issue  is  so  far  indeterminate,  in        [  250  ] 
the  case  of  a  limitation  to  the  issue,  if  it  were  intended  that 
the  issue  should  take   by  purchase,  that  it  seems   to  have 
been  the  opinion  of  Sir  Thomas  Plumer,  that  *=it  would  be 
ditlicult   to   determine    whether   all    the    descendants    who 
are    living    are    to    take  by   purchase,  or  only   the  imme- 
diate descendants  or  children  :  and  if  all  the  descendants 
are  so  to  take  ;  whether  they  are  to  take  per  stii'pes  or  in 

(b)  Wheeler  v.  Duke,  1  Cromp.  6:  Mees.  210. 
Vol.  II.— 26 


[  2r.o  ]        II.  13.]  AN  ORIGINAL  VIEW         [§511—515. 

capita. (c)   But  atliiiitting/' according  to  the  opinion  511 

of  Sir  W.  Grant,  M.  R..  tliat  issne,  iinconfiiied  by 
any  indication  of  intention,  includes  all  descendants,  and 
that  a  necessary  consequence  is,  tiiat  the  division  must  be 
per  capita,  among  tliose  who  are  living  ;(f/)  is  it  likely,  not 
to  say  certain,  that  this  was  the  intention  of  the  testator? 
If  lie  left  one  son,  and  ten  grandchildren  by  a  daughter,  is 
it  likely  he  would  wish  the  property  to  be  divided  equally 
between  his  twelve  descendants  ?  or,  supposing  the  daughter 
to  be  dead,  between  his  eleven  descendants  ?  Is  it  not  more 
likely  that  he  would  wish  the  son  and  daughter  to  take 
alone  by  purchase,  in  the  first  case,  and  the  grandchildren 
to  take  their  parent's  share  only,  in  the  second 
case?     Whether,  then,  we  regard  the  word  issue,  512 

imassisted  by  other  expressions,  as  indeterminate, 
or  as  determinate,  in  the  only  sense  in  which,  according  to 
Sir  W.  Grant's  opinion  and  upon  principle,  it  can  be  deter- 
minate, namely,  as  including  all  the  descendants,  and  point- 
ing out  all  the  descendants  who  are  living  as  purchasers  7?er 
capita;  it  must  be  evident,  that  it  is  by  no  means  adapted 
for  a  word  of  purchase. 
But  it  is  well      On  the  other  hand,  though  the  word  issne  is  not  513 

adapted  Cor    the  technical  word  of  limitation,  yet  as  soon  as  it 
a  word  of  li-  is  used  in  a  will  as  a  word  of  limitation,  and  consequently 
mitation.        becomes  subject  to  the  operation  of  the  rules  of  descent,  it 
See  §  404.     possesses  the  same  aptitude  for  this  purpose,  as  the  technical 
expression  heirs  of  the  body,  which  it  most  nearly  resem- 
bles, and  for  which,  in  fact,  it  is  used  as  a  synonyme  in  the 
Statute  De  Donis.     It  is  as  well  adapted,  therefore,  for  a 
[251   ]        word  of  limitation,  as  it  is  ill  adapted  for  a  word 
And  this  is     of  purchase.     And  for  this  reason,  as  well  as  for  514 

one  of  the      the  purpose  of  giving  effect,  as  will  presently  ap- 
grounds  of     pear,  to  the  paramount  intent  of  the  testator,  it  is  construed 
the  foregoing  a  word  of  limitation,  including  all  the  descendants  in  infi- 
rules.  nitum,  unless  there  are  expressions  whicfi  indicate,  that,  by 

issue,  the  testator  meant  children,  or  particular  individuals 
only  among  the  descendants  of  the  ancestor,  or  words  which 
unequivocally  show  that  he  intended  the  issue  to  take  by 
purchase. 
How  the  tos-      '^''^  testator  may  manifest  this  intention  by  ''di-  515 

tator  may      I'ecting  that  the  ancestor  shall  take  for  life  only;[e) 
manifest  an    o''  ^''^^  ^''e  issue  shall  take  distributively,  as  tenants  in  com- 
intention         mon,  or  otherwise ;  or  that  such  issue  only  should  take  as 
that  theword  should  attain  a  given  age;  or  by  any  other  unequivocal 
issue  should  manifestation  of  an  intent  which  would  be  inconsistent  with, 


(f)  See  Sir  Thomas  Plumer's  observations  in  Lyon  v.  Michell,  infra. 

[(I)  Lti3;h  V.  No:  bury,  13  Ves.  .fun.  344. 

(<-)  Backhouse  v.  Wells,  1  Eq.  Abr.  184,  pi.  27,  as  stated,  Fearne,  152. 


II.  13.]      OF  EXECUTORY  INTERESTS.  [§51G-51S.        [  251  ] 

or  would  not  be  accomplished  by  giving  the  ancestor,  an  notbeaword 

estate  tail,  and  admitting  the  issue  by  descent  from  him,  in-  of  limitation. 

stead  of  by  purchase,     it  must  be  observed,  iiowever,  that  ^ee  §  030. 

fsiich  manifestation  of  intent  may  be  counterbalanced  by 

any  other  clauses  or  expressions  indicative  of  an  opposite 
intent. (/) 

51 G  And  this  brings  us  to  the  question,  whether  he  It  is  not  ma- 

does  not  show  tiiat  such  was  his  meaning  or  inten-  nifcsted  by 

tion, 

lii 

^'"^  "'^"^' ""^  ^^ ^  "''''^""     "^ •'  crivintrthc 


does  not  show  that  such  was  las  meaning  or  mten-  mtcsteti  by 
ion,  when,  to  the  word  issue,  he  superadds  the  words  of  superadding 
imitation,  to  their  heirs,  or  to  the  heirs  of  their  bodies.     At  words  of  li- 
irst  sight,  it  would  certainlv  appear  that  this  clearly  indi-  mitation,  or 


Gates,  that  he  uses  the  word  issue  in  the  sense  of  children  ;  8 

estate  ex 


and  that  he  intended  that  they  should  take  by  purchase:  ancestor  an 


for,  otherwise,  the  superadded  words  would  be  inoperative,    ^^g^,    ^^^, 
And  this  might  appear  still  clearer,  e  if  the  ancestor's  estate  jip^^  J  ^^.j^^. 
were  expressly  for  life,  or  without  impeachment  of  Waste.  o,^,t'impeach- 
But  these  expressions  are  not  sufficient  to  convert  the  word  ^^^j^j  ^p 
issue   into  a  word  of  purchase  ;{g)  or,  in  other  words,  to        j-  052  ] 
prevent   it  from   operating  as   a  word   of  limitation,  and  ^vastc. 
thereby  giving  the  ancestor  an  estate  tail.     They  do  not  un- 
equivocally and  with  certainty  denote  that  the  testator  in- 
tended that  the  ancestor  should  take  a  life  estate  only,  and 
that  his  issue  should  take  by  purchase.     All  these  expres- 
sions, though,  at  first  sight,  they  seem  clearly  and  positively 
to  do  this,  may,  after  all,  be  resolved  into  the  mere  redun- 
dancies of  an  unprofessional  style,  into  the  mere  useless 
expression  of  that  which  would  be  included  in  an  estate  tail 
in  the  ancestor,  instead  of  that  which  is  inconsistent  with  an 
estate  tail  in  him. 

517  For  the  same  reason,  where  the  devise  to  the  Nqr  by  in- 
issue  is  introduced  by  words  of  contingency, /jr/ma  troducing 

facie,  importing  a  condition   precedent,  (See  §  13,)  but  the  words  of 
condition  would  have  been  necessarily  implied,  (as,  ''  if  he  contingency 
should  leave  any  issue);  this,  of  itself,  will  not  create  a  con-  which  would 
tingent  interest  in  favour  of  the  issue,  by  purchase,  and  pre-  ]^^^^.  °f^'^ 
vent  the  ancestor  from  taking  an  estate  tail.(/;)         nnplied. 

518  Again  ;  ''  where  the  devise  to  the  ancestor  is  for  Nor  by  pro- 
life,   and    he    is   expressly    forbidden    to    commit  hibiting  the 

waste,(^)  even  this  does  not  show  with  certainty,  that  the  ancestor 
testator  intended  the  ancestor  to  take  for  a  life  estate  only,  froni  com- 
and  the  issue  to  take  by  purchase.     For   this  may  only  mitting 
amount  to  the  attempt  to  create  an  estate  possessing  the  dis-  waste, 
tinctive  essential  qualities  of  an  estate  tail,  as  regards  the 


(/)  See  King  v.  Burchell,  Amb.  379,  as  stated  and  commented  on,  Fearne, 
163—4. 

(i?-)  See  Lord  Talbot's  observations   in   Lord  Ghnorchj/  v, 
Temp.  Talb.  :<.  M.   1733,  as  stated,  Fearne,  117. 

(/»)  Shaw  V.  nV/>/i,  2  Stra.  79S  ,•  S.  C.  1  Eq.  Ca.  Ab.  181,  pi.  26. 


Bosville,  Cas. 


[  252  J         II.  13.]  AN  ORIGINAL  VIEW         [§519—524 

acquisition  and  transmission  of  the  property  by  and  to  cer- 
tain designated  objects,  and  yet  deprived  of  some  of  the 
inseparable  incidents  of  an  ordinary  estate  tail. 
These  indi-        It   may    indeed    be    liighly   probable,   in    these  519 

cations  arc  cases,  that  the  intention  was,  that  tiie  ancestor 
equivocal.  should  take  a  life  estate  only,  and  tliat  the  issue  should  take 
by  purchase.  But  as  it  is  not  unequivocal  and  certain,  the 
kiw  will  not  take  this  view  of  the  testator's  intention,  be- 
cause, if  it  were  to  do  so,  it  would  be  thereby  sacrificing  a 
more  important  intent. 
Another  For,  even  in  the  cases  treated  of  in  the  present  520 

ground  of  the  chapter,  where  the  devise  is  to  the  issue,  and  not 
foregoing       the  heirs  generally,  or  heirs   of  the  body,  eo  nomine,  as  in 
f  253  1        'lit^  cases  in  the  preceding  chapter,  and  where  there  is  no 

,  devise  over  to  take  effect  on  an  indefinite  failure  of  issue,  as 

rules;  name-  .      ,  .       ,  .i       i       .       .i 

I  two  CO-  •"  ^'^®  cases  m  the  seventeenth  chapter,  there  are  two  co- 
existinfT  vet  existing  yet  inconsistent  intents ;  the  one  of  which  may  be 
inconsistent  termed  the  primary  or  paramount  intent,  and  the  other,  the 
intents  the  secondary  or  minor  intent.  And  as  these,  by  reason  of  their 
one  of  which  inconsistency,  cannot  be  both  effectuated,  the  secondary  or 
must  be  sa-  minor  intent  is  sacrificed,  in  order  to  give  effect  to  the  pri- 
crificedtothe  mary  or  paramount  intent, 
other.    Compare  §  429,  564b. 

Definition  of       The  primary  or  paramount  intent,  in  the  cases  521 

the  primary   treated  of  in  this   chapter,   is,  that   the  ancestor 
or  para-     "     should  have  the  enjoyment  of  the  estate  for  his  life;  and, 
mount  in-       subject  thereto,  that  the  estate  should  descend  to  all  his  de- 
tent, scendants,  so  far  as  the  rules  of  descent  will  permit. 
Compare  §  430,564b. 

Definition  of      The  secondary  or  minor  intent  is,  to  accomplish  522 

the  second-     the  primary  or  paramount  intent  in  a  particular 
ary  or  minor  mode  ;  in  such  a  mode,  at  least  as  the  devisor  supposes,  as 
intent.  to  secure   that   primary  or   paramount   intent  from  being 

defeated  by   the  act  of  the  ancestor :  in  other  words,  the 
secondary   or    minor   intent   is,   that   the    ancestor  should 
have  a  life  estate  only,  and  that  his  issue  should  take  by 
purchase. 
By  what  the       This  primary  or  paramount  intent,  in  the  cases  523 

primary  or  treated  of  in  the  present  chapter,  is  not  indeed 
paramount  expressed  by  any  positive  declaration,  or,  as  in  the  cases  in 
intent  is  im-  the  preceding  chapter,  by  the  use  of  the  technical  word 
ported  or  heirs;  but  yet  there  is  "a  vehement  presumption"  of  its 
evidenced,  existence,  not  excluded  by  any  unequivocal  expressions 
Compare  to  the  contrary,  nor  resting  in  mere  conjecture,  but,  on 
§  432,  564c.  tj^g  contrary,  supported  by  the  primd  facie  sense  of  the 
See  §511.     v/ord  issue. 

For,  even  in  the  cases  treated  of  in  the  present  524 

chapter,  where  the  devise  is  not  to  the  heirs,  gene- 
rally, or  heirs  of  the  body,  and  where  there  is  no  devise  over 


II.  13.J        OF  EXECUTORY  INTERESTS.  [§525,526.        [  253  ] 

to  take  effect  on  an  indefinite  failure  of  issue,  if  there  is  no 
une([uivocal  and  certain  indication  of  an  intent  that  the 
ancestor  should  take  a  hfe  estate  only,  and  that  the  issue 
should  take  by  purchase;  there  then  exists  a  vehement  pre- 
sumption of  an  intention,  that  all  the  descendants  of  the 
ancestor  should  be  admitted,  and  not  that  tiie  estate  should 
revert  before  all  the  descendants  of  tiie  ancestor  should  have 
failed.  In  these  cases,  indeed,  the  ancestor  was  not  the  sole 
ascertained  object  of  the  testator's  bounty,  as  he  was  in  the  [  254  ] 
case  of  a  devise  to  a  person  and  the  heirs  of  his  body,  liut  See  §  432. 
yet  he  was  evidently  the  original  attracting  object,  "the 
groundwork  of  the  testator's  bounty:"  and,  in  the  absence 
of  some  apparent  grounds  of  distinction  and  preference,  all 
persons  answering  the  description  of  issue  of  the  ancestor, 
in  the  sense  in  which  the  word  issue  is  used,  must  have  an 
equal  claim,  (apart  from  the  operation  of  the  rules  of 
descent,)  founded  entirely  upon  their  common  relationship, 
as  such  issue,  to  the  ancestor.  And  we  have  already  seen, 
that  where  real  estate  is  devised  to  a  person  and  his  issue, 
and  the  word  issue  is  unassisted  by  any  other  expressions 
indicating  that  by  issue,  the  testator  meant  children,  or  par- 
ticular individuals  only  among  the  descendants  of  the  ances- 
tor, or  unequivocally  showing  that  he  intended  the  issue 
to  take  by  purchase  ;  the  word  issue  includes  all  the  de- 
scendants. So  that  all  the  descendants  must  have  an  equal 
claim,  apart  from  the  operation  of  the  rules  of  descent:  and 
it  must  have  been  intended  that  all  should  accordingly  take, 
so  far  as  the  rules  of  descent  would  allow. 

525  If,   in  the  cases  to  which  the  present  chapter  Observations 
relates,  the  children    were  to    take   by  purchase,  showing  the 

according  to  the  supposed  secondary  intent,  then,  it  any  expediency 
child  died  in  the  lifetime  of  the  testator,  leaving  issue,  that  and  pro- 
issue   would  take  nothing;  for,  the  issue  of  the  deceased  pricty  of  con- 
child    would,  according   to  the   hypothesis,   only   take  by  struing  the 
descent  from  their  parent ;  and,  as  the  parent  took  nothing,  word  issueas 
they  could  take  nothing  by  descent  from  him  :  whereas,  if  «  ^ct^^l  ^[  li- 
the word  issue  were  a  word  of  limitation,  and  the  ancestor,  citation,  in 
the  father  or  mother  of  such  deceased  child,  were  to  take  °^"^^  '°  ®'' 
the  estate  tail,  instead  of  the  children,  then  the  issue  of  the  'ectuate  the 
deceased  child  would  be  capable  of  taking  by  descent  from  P'"'"''^'^^  or 
.  1      /-  1  r   1  ..."    1         .1     .  .1      paramount 

the  ancestor,  the  first  purchaser  of  the  estate  tail,  so  that  the  j^^^^^   j^ 

primary  intent  of  the  testator  would  be  accomplished;  for,  cases  falling 
all  tlie  descendants  of  the  ancestor  would  be  admitted,  be-  ^vithin  the 
fore  the  estate  would  revert  or  go  over.  Arst  rule. 

526  Hence,  the  law  will  not  restrict  the  estate  of  the 
ancestor  to  a  life  estate,  and  give  the  inheritance  to 

the  issue  as  purchasers,  where  it  is  not  certain  that  such  was 
the  intent  of  the  testator;  because,  in  this  case,  there  is,  on 
the  one  hand,  an  apparent  primary  or  paramount  intent, 
founded  in  the  most  vehement  presumption ;  and,  on  the        [  255  ] 


[  255  ]        II.  13.]  AN  ORIGINAL  VIEW  [§527,  528. 

other  hand,  an  apparently,  and  only  an  apparently,  certain 
secondary  or  minor  intent;  and  hence  there  is  nothing  snffi- 
ciently  express  and  nnequivocal  to  exclnde  or  negative  the 
apparent  primary  intent;  and  consequently  such  apparent 
primary  or  paramount  intent  is  justly  allowed  to  overrule 
the  apparent  secondary  or  minor  intent. 
Observations      But,  where  the  testator  has  expressly  and  ime-  527 

showing  the  quivocally  manifested  his  intention  that  the  issue 
propriety  of  should  take  by  purchase,  by  expressly  'restricting  the  ances- 
construing  tor  to  an  estate  for  life  only;  (/)  or  by  desiring  that  the  issue 
the  word  should  take  in  a  way  in  which  they  could  not  take,  if  they 
issue  a  word  came  in  by  descent ;  then,  indeed,  ^  unless  these  indica- 
of  purchase,  x\q^^^  ^f  ^^-^  intent  that  the  issue  should  take  as  purchasers, 
•"„^^/^^-'  ^^'^  counterbalanced  by  other  indications  of  an  opposite  in- 
,  =  ,  ^  .  tent,(/.')  the  word  issue  is  construed  a  word  of  purchase;  and 
1  the  ancestor  takes  an  estate  for  life,  with  a  contingent  re- 

mainder to  his  issue,  if  unborn,  or  a  vested  remainder,  if 
born  and  ascertained,  with  a  remainder  over  to  the  ances- 
tor in  tail,  in  case  there  is  a  devise  over  on  an  indefinite 
failure  of  his  issue,  as  we  shall  see  in  the  seventeenth  chap- 
ter. For,  in  this  case,  there  is  no  question  between  a  pri- 
mary and  a  secondary  intent ;  for,  as  the  intent  that  the  issue 
should  take  by  purchase,  is  not  a  matter  of  conjecture,  pre- 
sumption, or  construction,  however  probable,  but  an  intent 
unequivocally  expressed,  it  excludes  or  negatives  the  sup- 
position of  the  existence  of  any  incompatible  intent,  arising 
See  §  521,  merely  from  a  presumption,  however  vehement,  supported 
62.3-4.  by  \hc  prima  facie  meaning  of  the  word  issue. 

There  is  less      There  is  a  less  degree  of  presumption  against  528 

presumption  construing  the  word  issue,  a  word  of  purchase,  than 
against  con-  against  construing  the  words  heirs  of  the  body  to  be  words 
struing  issue  of  purchase  ;  and  a  still  less  degree  of  presumption  against 
[  256  ]  that  construction  of  the  word  issue,  than  against  the  same 
a  word  of  construction  of  the  word  heirs  generally:  so  that,  primd 
purchase  facie,  the  word  issue  is  more  likely  to  be  a  word  of  purchase 
than  against  than  the  words  heirs  of  the  body;  and  still  more  likely  than 
construing  the  word  heirs  generally.  For,  we  have  seen  that  the  heirs 
heirs  a  word  general  of  the  first  heir  general  of  the  ancestor,  may  not  be 
of  purchase,  ^[,3  j,gj^g  ^^  ^^^  ancestor  himself:  whereas,  the  issue  of  the 
especially  niore  immediate  issue,  or,  in  other  words,  of  the  children 
leirs  gene-  ^^^j  grandchildren  of  tlie  ancestor,  are  also  the  issue  of  the 
^  ancestor  himself.     And,  as  regards  heirs  special,  though  the 

heirs  of  the  body  of  the  first  heir  of  the  ancestor's  body,  are 
See  §  383-4.  also  heirs  of  the  body  of  the  ancestor  himself;  yet  the  heirs 
of  the  body  are  not  ascertained ;  for,  nemo  est  hseres  viventis; 

(i)  Backhonse  v.  Wells,  1  Fiq.  Abr.  184,  pi.  27,  as  stated,  Fearne,  152. 
(k)  See  King  v.  Burchell,  Amb.  379,  as  stated  and  commented  on,  Fearne, 
163—4. 


II.  13.]         OF  EXECUTORY  INTERESTS.  [§529.        [  2,'->G  ] 

aiid  it  may  be  uncertain  wliclhcr  the  person  who  may  lirst 
answer  the  description  of  hoir  of  the  body  of  the  ancestor, 
will  be  his  child,  grandchild,  or  great-grandchild.  And, 
consequently,  in  a  devise  to  a  person  and  the  heirs  of  his  See  §  432. 
body,  the  ancestor  is  the  sole  ascertained  object  of  the  testa- 
tor's bounty;  and  all  who  may  answer  the  description  of 
heirs  of  his  body,  have  an  equal  claim,  founded  entirely  on 
their  common  relationship  to  him,  as  the  sole  ascertained  as 
well  as  the  original  attracting  object  of  the  testator's  bounty.^ 
Whereas,  in  a  devise  to  a  i)erson  and  his  issue,  the  issue,  if 
already  born,  are  ascertained  in  every  respect;  and,  even  if 
unborn,  still  they  are  only  unascertained,  because  unborn, 
and  not  in  res])ect  of  the  necessity  of  sustaining  a  certain 
character,  which  may  not  be  sustained  by  any  one  more 
nearly  related  to  the  ancestor,  than  in  the  third  degree.  And 
hence  there  is  a  less  antecedent  improbability  that  the  word 
issue,  than  that  the  word  heirs,  should  be  used  as  synony- 
mous with  children  of  the  ancestor  or  his  descendants  living 
at  a  certain  time  ;  and  this  is  especially  the  case  witli  the 
word  heirs  generally,  as  contradistinguished  from  heirs  of 

the  body. 
529  The  first  of  the  foregoing  rules,  whicli  shows  in 

what  instances  the  word  issue  is  construed  a  word 
of  limitation,  may  be  illustrated  by  a  case,  which,  although 
a  case  of  personal  estate,  was  decided  with  express  reference 
to  real  estate  ;  and  consequently  may  be  cited  in  illustration 
of  the  rule  above  laid  down.     In  that  case,  a  residue  of  per-        [  257  ] 
sonal  estate  was  directed  by  will  to  be  divided  equally  among  Lyon  v. 
the  testator's  sons,  share  and  share  alike,  as  tenants  in  com-  Michell,  1 
nion,and  to  the  issue  of  their  several  and  respective  bodies;  Mad.  473. 
but,  in  case  of  the  death  of  any' or  either  of  them,  without 
issue  living  at  the  time  of  his  or  their  respective  deaths,  then, 
the  part  or  share  of  him  or  them  so  dying  to  go  to  the  sur- 
vivors and  survivor,  equally,  share  and  share  alike,  and  to 
the  issue  of  then-  several  and  respective  bodies.    Sir  Thomas 
Plumer,  V.  C,  held,  that  as  the  words  would  have  created 
an  express  estate  tail,  if  applied  to  real  estate,  the  four  sons 
took  absolute  interests  in  the  personal  estate  according  to  the 
general  rule  ;  (1  Mad.  475  ;)  but,  that  on  the  death  of  one  See  §  593- 
of  the  sons  without  issue,  his  share  survived  to  his  brothers,  600. 
by  way  of  executory  devise,  which  was  not  too  remote.  See  §  706, 
because  it  was  to  take  effect,  not  on  an  indefinite  failure  of  714. 
issue,  but  on  the  failure  of  issue  living  at  the  death  of  the 
party.    {lb.  470.)     His  Honour  observed,  that  the  sons  had 
no  issue  at  the  time ;  and  that  the  word  issue  was  generally 
used,  in  a  will,  as  a  word  of  limitation.     That  if  the  word 
issue  was  there  a  word  of  purchase,  it  must  be  used  either 
for  the  purpose  of  making  them  tenants  in  common  with 
their  parents,  or  to  enable  them  to  take  in  remainder.    That 


[  257  ]        II.  13.]  AN  ORIGINAL  VIEW  [§530. 

if  it  was  intended  to  make  them  tenants  in  common  with 
their  parents,  it  came  at'ier  the  description  of  those  who  were 
to  be  tenants  in  common,  and  it  woiild  he  dilTicult  to  fix 
upon  the  persons  who  were  to  take  as  issue;  that  word  in- 
chiding  grand-children  as  well  as  children,  and  to  determine 
the  proportions  in  which  they  were  to  take  ;  and  that  if  they 
were  to  take  in  remainder,  the  same  difficulty  would  occur. 
Tate  V.  And  wliere  .,'?.  devised  real  estate  to  his  widow,  for  life; 

Clark,  1         with  remainder  to  trustees,  to  pay  costs  &c.,  and  to  divide 
Beav.  100.     the  residue  of  the  rents  amongst  all  his  brothers  and  sisters 
See  also         ^^y]^Q  should  be  living  at  the  time  of  the  decease  of  his  wife, 
Goodright     ^,-,j  jg   \\\e\r   issue   male  and   female,  after  the  respective 
V.  Wrisht,    deceases   of  his  said  brothers  and  sisters,  for  ever,  to  be 
1  P.  W.  397,  eqjially  divided  between  and  amongst  them.     Lord  Lang- 
as  stated,       ^,^|^^  ^j  ^^  ^^j^^  ^j^^^  ^1^^  \yo\'&  issue  is  a  word  of  limitation, 
r  yTs^'l    ^  if  the  context  of  the  will  does  not  afford  sufficient  reasons  to 
L      ,,.-'        construe  it  otherwise.    That  tlie  words  of  distribution  might 
raii'inw.  ^^  applied  to  the  brothers  and  sisters;  and  that  though  it 
Mad'  2.')8       "^^"^^  '"°^^  unlikely  that  the  testator  should  have  intended  to 
stated  infra,  inake  no  provision  for  the  children  of  a  brother  and  sister 
*  who  died  in  the  lifetime  of  the  widow  ;  [and  though  there 
was  no  gift  over  in  default  of  issue,  a  circumstance  to  which 
His  Lordship  also  adverted;]  yet,  being  unable  to  find  such 
clear  indications  of  intention  that  the  technical  words  should 
not  have  their  ordinary  effect,  he  must  hold,  that  the  chil- 
dren of  a  sister  who  died  in  the  lifetime  of  the  widow  took 
nothing.     And  a  similar  decision  was  made  with  respect  to 
the  personal  estate. 
Observations      The  words  of  distribution  not  only  may  be  applied  to  the 
on  Tate  v.     brothers  and  sisters,  but  they  seem  in   fact  exclusively  to 
Clark.  belong  to  them  ;  for,  the  word  "  them,"  whether  explained 

by  the  next  antecedent,  or  by  the  foregoing  word  "  their," 
properly  refers  to  the  brothers  and  sisters  alone.    And  hence 
this  decision  is  clearly  in  conformity  with  the  general  cur- 
rent of  authorities.     But,  it  may  be  observed,  that  when 
the  learned  Judge  speaks  of  the  word  "issue"  male  as  a 
technical  word,  he  must  be  understood  to  mean,  a  word  to 
which  the  technical  signification  of  heirs  of  the  body  is  ordi- 
narily attached  in  the  absence  of  other  words;  and  not  that, 
like  the  word  "  heir,"  it  is  intrinsically  a  technical  word;  a 
Compare        word  of  such  a  nature  as  to  control  the  force  of  other  expres- 
§  383,  453,   sions,  unless  translated,  as  it  were,  into  a  popular  word,  by 
472,  479.       such  other  expressions. 

The  following  cases,  where  the  word  issue  was  530 

construed  a  word  of  purchase,  will  illustrate  the 

second  of  the  foregoing  rules. 

Hockley  v.         -^  testator  devised  his   freehold  and  leasehold  estates  to 

Mav'hey,  1    his  wife,  for  life  ;  remainder  to  her  son,  and  his  issue  law- 

Ves.  142.      fully  begotten  or  to  be  begotten,  to  be  divided  among  thera 


II.  13.]         OF  EXECUTORY  INTERESTS.  [§.530.        [  25S  ] 

as  he  should  think  fit;  and,  in  case  ho  should  die  without 
issue,  he  directed  that  the  estate  sliould  be  sold,  and  the  pro- 
duce divided  among  certain  other  persons.  The  Lord 
Chancellor  held,  that  there  was  a  contingency  with  a  double  See  §  128- 
aspect ;  in  the  one  case,  to  the  children  of  the  son  ;  in  the  136. 
other,  to  the  other  persons  pointed  out.  That  it  was  clear 
that  he  did  not  intend  the  estate  to  go  to  the  issue,  as  heirs  [  259  ] 
in  tail :  for,  he  meant  that  they  should  take  it  distributively, 
and  according  to  {)roj)oriions  to  be  fixed  by  the  son.  That 
it  had  been  often  decided,  that  where  there  is  a  gift  in  that 
way,  the  parties  must  take  as  purchasers ;  for,  there  is  no 
other  way  for  them  to  take.  That  if  the  gift  was  not  di- 
vided by  the  son  among  his  children,  it  was  a  gift  to  them 
equally;  as  the  testator  intended  to  vest  an  interest  in  the 
children  of  his  son  independently  of  the  son,  except  as  to 
the  proportions.  That  it  was  true  that  the  word  "  issue" 
would  extend  to  descendants,  however  remote,  but  only  as 
a  description  of  the  objects  among  whom  the  power  of  the 
son  was  to  obtain  to  make  partition.  That  it  was  an  estate 
devised  upon  two  alternative  contingencies;  one,  that  there 
were  objects  capable  of  taking  under  the  first  limitation ; 
another,  that  there  were  none  such,  but  that  there  were 
objects  capable  of  taking  under  the  second. 

Again;  a  testator  devised  to  his   niece,  and  the   issue  oi  Doc  A.  Davy 
her  body,  as  tenants  in  common,  if  more  than  one  ;  but,  in  v,  Bumsall, 
default  of  such  issue,  or,  being  such,  if  they  should  all  die  G  D.  &  E. 
under  the  age  of  21,  and  without  leaving  lawful  issue,  then  30. 
over.     The  niece  suflered  a  recovery,  and  levied  a  fine,  and 
died  without  ever  having  had  any  issue.     It  was  argued, 
that  the  word  issue  meant  children,  on  account  of  the  super- 
added words,  and  because  the  testator  considered   that  the 
issue  of  the  niece  might  all  die,  and  yet  leave  issue.     And 
it  was  held  accordingly:  and  that  the  limitations  subsequent 
to  that  to  the  niece,  were  all  contingent;  and  the  particular  See  §  766. 
state  of  freehold  by  which  they  were  supported,  having 
been  destroyed  before  they  were  capable  of  taking  etlect, 
they  were  also  destroyed  with  it.     Lord  Kenyon,  C.  J.,  said, 
that  it  was  a  contingency  with  a  double  aspect,  like  Lod- 
dington  v.  Kimc ;  if  the  niece  had  any  children,  the  estate  Sec  §  128- 
was  limited  to  them  in  fee;  if  she  iiad  no  children,  or  if  she  136. 
had  any,  and  they  all  died  under  21,  and  without  leaving 
issue,  then,  it  was  to  go  over. 

So  where  a  testator  devised  to  Jl.,  and  to  the  issue  of  his  Z>oe  d.  Gil- 
body,  his,  her,  or  their  heirs,  equally  to  be  divided,  if  more  man  v.  El- 
than  one  ;  and  if  ^?.  should  have  no  issue  of  his  body  living  rc^/,  4  East, 
at  the  time  of  his  decease,  then  over.     It  was  considered,  313. 
that ./?.  took  an  estate  for  life;    remainder  to   his   unborn         [  2G0  ] 
issue  in  fee,  if  he  had  any;  and  if  their  estate  should  not 
lake  effect,  then  over  in  fee.     But  it  was  not  necessary  to 
Vol.  II.— 27 


[  260  ]        II.  13.]  AN  ORIGINAL  VIEW  [§530. 

decide  this  point :  for,  it  was  lielrl,  tliat  qudcunque,  vid  datd, 
a  recovery  siifl'ered  by  ^^.,  before  lie  had  any  issue,  barred 
the  Hmitations. 
Merest  v.  And  where  a  testator  devised  to  the  use  of  his  daughter, 

James,  4  for  hfe  ;  and,  after  her  decease,  then,  to  the  use  of  the  issue 
Moore,  327;  of  her  body,  lawfully  begotten  ;  and  in  default  of  issue,  or 
S.C.  1  Bred,  in  case  none  of  such  issue  lived  to  attain  the  age  of  21  years, 
&Bing.  127.  then  over.     The  Court  of  Common  Pleas  certified,  that  the 

daughter  took  an  estate  for  life  only. 
Observations      It  is  to  be  observed,  that  the  words  "or  in  case  none"  &c., 
on  Merest  v.  describing  a  failure  of  issue  by  death  under  21,  as  a  distinct 
James.  event  from  that  described  by  the  preceding  words,  "and  in 

default  of  issue,"  show  that  such  preceding  words  did  not 
mean  an  indefinite  failure  of  issue :  for,  in  that  sense,  they 
would  have  included  the  failure  of  issue  afterwards  de- 
scribed as  a  distinct  event,  but  meant  in  default  of  children, 
in  the  event  of  no  children  being  born,  and  thereby  made 
it  evident, that,  by  the  issue  to  whom  the  estate  was  expressly 
devised,  the  children  of  the  daughter  were  intended. 
Lees  V.  MoS'  Again  ;  a  testator  devised  to  his  son,  H.  J.,  for  life  ;  with 
ley,  1  You.  remainder  to  his  lawful  issue,  and  their  respective  heirs,  in 
&  Coll.  589.  such  shares  and  proportions,  and  subject  to  such  charges  as 
//.  J.  should  appoint ;  but,  in  case  H.  J.  should  not  marry 
and  have  issue  who  should  attain  21,  then  to  his  son  O.,  in 
fee.  It  was  held,  that  //.  J.  took  an  estate  for  life  ;  with 
remainder  to  his  children,  as  tenants  in  common  in  fee. 
Alderson,  B.,  in  delivering  the  judgment  of  the  Court,  said 
"  The  word  issue  is  used  in  different  senses  ;  either  as  in- 
cluding all  descendants,  in  which  case  it  is  of  course  a  word 
See  §  403-4.  of  limitation  ;  or,  as  confined  to  immediate  descendants,  or 
some  particular  class  of  descendants  living  at  a  given  time. 
Probably  it  will  be  found  most  frequently  used  in  the  former 
sense;  and  it  therefore  most  frequently  has  the  effect  of 
giving  an  estate  tail  to  the  ancestor.  It  might  even  perhaps 
be  conceded,  that  this  is  'prima  facie  its  meaning.  But  the 
[  261  ]  authorities  clearly  show,  that  whatever  be  the  primd  facie 
meaning  of  the  word  "issue,"  it  will  yield  to  the  intention 
of  the  testator,  to  be  collected  from  the  will ;  and  that  it  re- 
quires a  much  less  demonstrative  context  to  show  such  in- 
tention, than  the  technical  expression  of  heirs  of  the  body 
would  do."  (1  You.  &  Coll.  609.)  "  Now,  if  issue  be  taken 
as  a  word  of  limitation,  the  word  "  heirs"  would  be  first  re- 
strained to  "  heirs  of  the  body,"  and  then  altogether  rejected 
as  unnecessary.  The  word  "  respective"  could  have  no 
particular  meaning  annexed  to  it;  and  the  apparent  inten- 
tion of  the  testator  to  give  H.  J.  an  estate  for  life,  and  after- 
wards to  distribute  his  property  in  shares  amongst  the  issue, 
would  be  frustrated."     {lb.  610.) 

In  another  case,  *d.  devised  residuary  freehold,  copyhold. 


II.  13.]         OF  EXECUTORY  INTERESTS.  [53u.        [  261  ] 

and  leasehold  estate,  to  liis  son  and  four  daughters,  and  their  Cursham  v. 
lawful  issue  respectively,  in  tail  general,  with  benefit  of  sur-  Newland^  2 
vivorship  to  and  amongst  their  issue  respectively,  as  tenants  Beav.  14o. 
in  common ;  provided  always,  that  such  issue  should  not 
have  a  vested  interest  until  they  attained  21,  being  sons, 
and  being  daughters,  until  they  should  attain  that  age,  or 
be  married  ;  but,  during  the  minority  of  the  said  issue,  the 
trustees  might,  after  the  deaths  of  the  testator's  son  and 
daughters,  apply  the  wliole  of  the  interest  of  the  ))resump- 
tive  share  of  each  child,  for  his,  her,  or  their  maintenance, 
education,  and  advancement,  and  in  case  his  son  or  daugh- 
ters, or  any  or  either  of  them,  should  die  without  leaving 
lawful  issue,  or  with  lawful  issue,  and  such  issue,  being 
sons,  should  not  attain  21,  or,  being  daughters,  should  not 
attain  that  age  or  be  married,  then,  the  shares  of  them  so 
dying  to  be  for  the  benefit  of  the  survivors  and  their  issue, 
in  the  same  manner  as  their  original  shares.  The  Court  of 
Exchequer  (in  unison  with  the  certificate  of  the  Court  of 
Common  Pleas,  except  as  to  the  accruing  shares  of  the 
entirety.)  certified,  that  the  testator's  children  took  estates 
for  their  respective  lives  in  the  freehold  and  copyhold  lands, 
as  tenants  in  conunon,  with  contingent  remainders  in  their 
respective  shares  to  their  respective  children,  by  purchase, 
as  tenants  in  common,  in  tail,  with  cross  remainders  in  tail 
between  such  children,  in  each  respective  share;  with  cross 
remainders  over  in  the  whole  of  each  of  such  shares  respec-  [  262  ] 
lively,  on  failure  of  all  the  children  of  any  son  or  daughter 
and  their  issue,  to  the  survivors  or  survivor  of  them,  the  tes- 
ter's son  and  daughters,  and  the  children  of  such  surviving 
son  or  daughter,  in  like  manner  as  in  the  original  share  of 
such  son  or  daughter  ;  and  thai  the  testator's  son  and  daugh- 
ters took  corresponding  interests  in  the  leaseholds.  Lord 
Langdale,  M.  R.,  confirmed  the  certificate  of  the  Court  of 
Exchequer,  adding,  that  the  word  "survivor"  was  to  be 
construed  "other." 

And  where  a  testator  devised  to  his  wife,  for  life  only  ;  Doe  d. 
remainder  to  his  daughters  E.  and  S.,  to  be  equally  divided  Cooper  v. 
between  them;  viz.  the  one  moiety  to  E.  and  her  heirs  for  Co'lis,A  D. 
ever,  and  the  other  moiety  to  S.  during  the  term  of  her  natu-  ^  t--  ^94. 
ral  life  ;  and,  after  her  decease,  to  the  issue  of  her  body  law-  j^^  ^'^° 
fully  begotten,  and  their  heirs  for  ever.     *S'.  had  one  child     ^^y^^'^\ 
living  at  the  time  of  the  devise.     It  was  held,  that  the  chil-  ^"    ^^  ^g^ 
dren  of  aS".  took  a  fee,  as  purchasers.     Lord  Kenyon,  C.  J.,  gt!,(gj  "        ' 
in  accordance  with  L.  C.  J.  Wilmot's  observations  in  Roe  v.  pgarnc  152' 
Greiv,  2  Wils.  322,  said,  that,  in  a  will,  issue  is  either  a  Loddin^ton 
word  of  purchase  or  of  limitation,  as  will  best  answer  the  y  Ki^c,  1 
intention  of  the  devisor,  though  in  the  case  of  a  deed,  it  is  Salk.  224, 
universally  taken  as  a  word  of  purchase.     In  this  case,  the  stated, 
prior  devise  of  the  first  moiety  to  the  other  daughter  E.  and  Fearne,  152. 

Observations 


[  262  ]        II.  13.] 


AN  ORIGINAL  VIEW       [§531— 533a. 


on  Doe  fl. 
Cooper  V. 
Collis. 


III.  Trusts 

executory, 

created  by 

marriage 

settlement. 

See  §  489, 

494-5,  TOG, 

710. 

See  §  520- 

627. 

[   263   ] 

See  §  598. 


IV.  Trusts 
executory 
created  by 
will. 

V.  Where 
the  two  limi- 
tations are 
not  both 
legal,  or  both 
equitable. 

VI.  Where 
the  issue 
cannot  take 
by  purcliase 
on  account 
of  the  rule 
against  per- 
petuities. 
See  §  706. 


her  heirs  for  ever,  showed  that  the  testator  intended  to  make 
a  distinction  between  the  two  daughters,  by  giving  E.  the 
absolute  power  over  her  moiety,  and  by  restricting  S.  to  a 
life  estate,  and  securing  the  estate  to  her  issue  after  her 
decease. 

III.  But,  in  the  case  of  an  executory  trust  by  531 
marriage  articles,  in  favour  of  a  person  in  esse,  and 

his  issue,  his  children  will  take  as  purchasers,  even  in  the 
absence  of  any  indication  that  they  should  take  by  pur- 
chase :  because,  they  are  considered  as  purchasers  for  valua- 
ble consideration  ;  and,  in  the  case  of  an  executory  trust, 
the  intent  that  the  issue  should  take  by  purchase,  can  be 
effectuated  without  sacrificing  the  primary  intent  of  admit- 
ting all  the  issue  ;  for,  the  conveyance  to  be  made  in  pursu- 
ance of  the  trust,  can  be  so  framed,  that  all  the  descendants 
shall  take,  before  the  estate  can  revert  or  go  over.  So  that 
'where  it  is  agreed  to  limit  lands  in  remainder  to  or  for  the 
issue  of  the  tenant  for  life,  a  strict  settlement  will  be  directed 
to  be  made  upon  the  first  and  other  sons,  in  tail,  remainder 
to  the  daughters,  &c.(/) 

IV.  "  In  the  case  of  an  executory  trust  by  will,  532 
in  favour  of  a  person  in  esse,  and  his  issue,  the 
children  will  take  by  purchase,  if,  on  the  whole,  it  appears 
most  probable  that  the  testator  intended  them  to  take  in  that 
manner.(77i) 

V.  "Where  the  limitation  to  the  ancestor,  view-  533 
ed  by  itself,  would  create  a  mere  equitable  estate, 

and  the  limitation  to  the  issue  a  legal  estate;  or,  vice  versa; 
the  issue  will  take  by  purchase,  in  the  same  manner  as  the 
heirs  of  the  body,  under  similar  circumstances. (n) 

VI.  "And  if  the  issue  cannot  take  by  purchase,  533a 
on  account   of  the  rule  against  perpetuities,  the 

word  issue  will  be  construed  a  word  of  limitation,  in  cases 
where,  but  for  that  rale,  it  would  be  construed  a  word  of 
purchase,  according  to  the  second  of  the  foregoing  rules  in 
the  present  chapter.(o) 

(Z)  Hart  V.  Middle.hurst,  3  Atk.  371  ;  and  Dod  v.  Dad,  Amb. 
Rep.  274  ;  as  stated,  Fearne,  105 — 6. 

{m)  Jjord  Glenorc.hy  v.  Bosvile,  Cas.  Temp.  Talb.  3  M.  1733  ; 
as  stated,  Fearne,  116 — 7. 

(«)  See  Mogg  V.  Mogg,  1  Meriv.  654  (as  regards  the  devise  of 
the  lower  Mark  estate),  stated  §  705.     See  also  §  401,  470. 

(o)  See  Mogg  V.  Mogg,  1  Moriv.  654,  stated  §  705. 


II.  14.]       OF  EXECUTORY  INTERESTS.  [§534,535.        [  204  1 


CHAPTER  THE  FOURTEENTH. 


FOURTH  EXCEPTION  FROM  THE  FOURTH  CLASS  OF  CONTIN- 
GENT REMAINDERS,  UNDER  THE  CY  PRES  DOCTRINE, 
WHERE  REAL  ESTATE  IS  DEVISED  TO  THE  CIIILDREX  OF 
AN    UNBORN    CHILD. 


534  "Where  a  testator  devises  an  estate  tail  to  a 
grandchild,  by  a  child  not  yet  born  at  the  testator's 

death,  to   take  by  purchase ;  and  he  appears  to  have  in- 
tended that  all  the  issue  of  such  unborn  child  should  take, 
so  far  at  least  as  the  rules  of  descent  will  permit;  the  Courts, 
though  obliged  to  sacrifice  his  minor  intent  that  the  grand- 
child,   by    such   unborn   child,   should    take   by  purchase, 
because  it  is  contrary  to  the  rule  against  perpetuities,  will  See  §  TOG, 
nevertheless,  under  the  doctrine  of  approximation,  or,  as  it  is  710. 
commonly  called,  the  ci/  pres  doctrine,  give  effect  to  his  See  §  436. 
paramount  intent,  that   all  the  issue  of  the  unborn  child 
should  take,  by  giving  an  estate  tail  to  such  unborn  child, 
so  as  to  enable  the  grandchild  to  take  derivatively  through 
such  unborn  child,  though  it  cannot  be  allowed  to 

535  take  in  the  particular  mode  pointed  out   by  the 
testator.(a)     And  ''in  the  case  of  Pitt  v.  Jackson, 

this  construction  was  adopted,  though,  in  that  case,  the 
grandchildren  by  the  daughter  were  intended  to  take  con- 
currently,(6)  which  was  of  course  essentially  different  from 
the  devolution  of  the  land  under  the  estate  tail,  which  the 
Court  gave  the  daughter,  under  the  doctrine  of  approxima- 
tion. 


(a)  See  Butler's  note,  Co.  Litt.  271  b,  (1)  VII.  2.    See  also  his  note  to  Fearne 
201,  (g) ;  and  Nichol  v.  NichoJ,  2  W.  Blac.  1159,  as  there  cited. 

(h)  2B.  C.  C.  51. 


[  265  ]        II.  15.]  AN  ORIGINAL  VIEW        [§53G,  53Ga. 


CHAPTER  THE  FIFTEENTH. 

FIFTH  EXCEPTION  FUOM  THE   FOURTH   CLASS  OF  CONTINGENT 
REMAINDERS,    UNDER     THE     CY    PRES     DOCTRINE,    IN     THE 
CASE    OF    AN    INTENDED    PERPETUAL   SUCCESSION    OF    LIFE 
_    „  ,  ESTATES. 

I.  Perpetual 

succession  of  j  a  "Where  a  testator  attempts  to  create  a  perpc-  536 
lile  estates,     .      ,  •         c\c       ,  ^       \  c  . 

,       •    r    f     tual  succession  ot  lile  estates,  by  way  of  executory 

executorv  ^^'ust,  in  favour  of  unborn  children,  and  more  remote  de- 
trust  in  fa-  scendants,  the  children,  when  born,  will  take  estates  tail,(«) 
vour'of  un-  under  the  cy  pres  doctrine  or  doctrine  of  approximation,  in 
born  de-  order  that  the  descendants  of  such  unborn  children,  may 
scendants.  t^ike  derivatively  through  such  children,  as  they  cannot  take 
See  §  706,  independently  by  purchase,  on  account  of  the  rule  against 
710.  perpetuities. 

II.  Perpetual  II-  And  where  a  testator  attempts  to  create  a  536a 
succession  of  perpetual  succession   of  life    estates  in  favour  of 

life  estates  in  children  in  esse  and  more  remote  descendants,  the  children 
favour  of  will  take  estates  tail  under  the  cy  pres  doctrine,  in  order  to 
children  in  effectuate  the  apparent  primary  or  paramount  intent  of  ad- 
esse  and  mitting  all  the  more  remote  descendants  to  take  derivatively 
more  remote  through  the  children,  as  those  among  them  who  were  un- 
descendants.  born  children  of  persons  not  in  esse,  could  not  take  inde- 
See  §  436.  pendcntly,  by  purchase,  on  account  of  the  rule  against  per- 
See  §706,     fetuities.  ^ 

A  testator  devised  an  estate  to  trustees,  in  trust  to  permit 
Wollen  V.      the  devisor's  six  children  to  receive  one  sixth  part  each  of 
Andrewes,     jj^g  rents,  during  the  terms  of  their  natural  lives  ;  and,  after 
Ding.  126.  tj^gjp  respective  deceases,  then  to  permit  all  the  children  of 
[  266  ]        such  of  his  sons  or  daughter  so  dying  to  receive  the  rents 
of  such  share  or  shares  of  him,  her,  or  them,  so  dying;  and 
so,  in  like  manner,  from  children  to  children  ;  and  in  case 
any  or  either  of  his  said  children  should  die  without  leaving 
issue,  then,  the  rents  belonging  to  such  of  his  sons  or  daugh- 
ter should  be  received  by  the  survivor  or  survivors.     It  was 
held  that  the  six  children  took  estates  tail ;  because,  (Best, 
C.  J.,  said,)  the  testator  went  on  to  attempt  that  which  was 
impossible — to  give  an  estate  for  life  to  unborn  grandchil- 
dren; he  is  not  allowed  so  to  advance  towards  the  creation 
of  a  perpetuity :  but  the  Court  must  do  that  which  would 
approach  nearest  to  his  intentions.     But  there  were  other 

(a)  See  Humberston  v.  Humberston,  1  P.  W.  332,  as  stated,  Fearne,  503. 


II.  15.]        OF  EXECUTORY  INTERESTS.         [§536b.        [  266  ] 

words  (he  added)  which  placed  the  matter  out  of  doubt ; 

namely,  the  gift  over  on  faihire  of  issue.  Observations 

This  decision,  in  order  to  be  satisfactory,  must  be  relerred  ^^  f-follenv. 
simply  to  the  i)rinciple  above  laid  down.     For,  an  estate  for  ^/jndrewes. 
life  mai/  be  given  to  an  unborn  grandchild  by  a  child  in  esse  gp^.  ^  711. 
at  the  lime  ;  and  the  gift  over  on  failure  of  issue  was  not  a  713. 
gift  over  on  an  indefinite  failure  of  issue.  Sec  §  553-4. 

In  another  case,  a  testor  devised  lands  for  the  use  of  his  Brooke  v. 
three  children,  for  their  lives,  in  equal  shares,  and  to  the  Turner,  2 
issue  of  their  respective  bodies,  for  their  respective  life  only,  Bing.  New 
in  equal  shares  for  ever;  and,  in  case  of  the  death  of  any  Cases,  422. 
or  either  of  his  said  children,  without  issue,  then,  in  trust  for 
the  survivors  or  survivor,  in  c(|ual  shares,  for  life  only,  or 
to  their  respective  issues,  in  equal  shares,  for  life  only  ;  and, 
in  case  there  should  be  only  one  child  then  living,  then, 
upon  trust  for  such  only  child,  for  life  only,  and  for  the  issue 
of  such  only  child,  for  life  only,  in  equal  shares;  and,  if  but 
one  issue  of  such  child,  then,  to  such  only  child's  issue,  for 
life  only,  and  the  heir  of  his  or  her  body  for  ever;  with  a 
liniitalion  over,  in  case  there  should  not  be  any  lawful  issue 
of  such  child,  or  the  child  of  such  child.  Either  child  who 
should  marry,  was  to  have  power  to  make  a  settlement,  for 
the  lives  of  the  parties,  and  the  lives  of  their  issue,  with 
remainder  over  in  tail.  By  a  codicil,  he  devised  the  same 
lands  to  his  said  three  children,  as  tenants  in  common,  for 
99  years,  if  his  children  should  so  long  live ;  remainder  to 
trustees  to  preserve  contingent  remainders  ;  and  the  uses 
expressed  in  the  will,  as  far  as  the  rules  of  law  would  per-  [  267  ] 
mit,  were  to  be  carried  into  perfect  execution.  The  Court 
of  Common  Pleas  certified,  that  the  three  children  took 
estates  for  99  years,  if  they  should  so  long  live,  as  tenants 
in  common;  remainder  to  trustees  to  preserve  contingent 
remainders;  remainder  to  the  three  children,  as  tenants  in 
common,  in  tail  general ;    with  cross  remainders  between 

them,  in  tail  general. 
536b  III.  But,  where  there  is  a  single  intent  to  create  HI.  Limited 

a  limited  number  only  of  life  estates  in  succession,  number  of 
not  warranted  by  the  rule  against  perpetuities,  an  estate  tail  life  estates, 
will  not  be  given  to  any  of  the  persons  intended  to  take  such 
life  estates. 

A  testator  gave  an  estate  to  his  son  F.,  during  his  natural  Seaward  v. 
life;  and,  after  him,  he  gave  it  to  his  eldest  or  any  other  son  \Vil!oek,  o 
after  him,  during  his  natural  life;  and,  after  them,  to  as  East,  598. 
many  of  his  descendants,  issue  male,  as  should  be  heirs  of 
his  or  their  bodies,  down  to  the  tenth  generation,  during 
their  natural  lives.     It  was  held,  that  F.  took  for  lite  only. 
Lord  EUenborough,  C.  J.,  observing,  that  in  Robinson  v. 
Robinson,  1  Burr.  38;  Doe  v.  Applin,  4  T.  R.  82;  Doe  d^. 
Bean  v.  Halley,  8  T.  R.  5,  expressions  were  used  denoting 


[  267  ]        II.  16.]  AN  ORIGINAL  VIEW  [§537. 

an  intention  that  the  lands  should  continue  in  the  descen- 
dants of  the  first  taker  as  long  as  there  were  any,  without 
specilying  or  marking  what  estates  such  descendants  should 
take.     That  this  case,  however,  was  not  a  case  of  a  particu- 
lar and  a  general  intent,  but  a  case  of  a  single  intent  to  create 
a  succession  of  estates  not  warranted  by  law. 
Observation        The  restrictive  words  ''down  to  the  tenth  generation," 
on  Seaward  plainly  distinguish  this  case  from  the  preceding,  and  nega- 
V.  Willock.     tive  the  existence  of  any  primary  or  paramount  intent  to 
admit  all  the  descendants. 


[  268  ]  CHAPTER  THE  SIXTEENTH. 

SIXTH  EXCEPTION  FROM  THE  FOURTH  CLASS  OF  CONTIN- 
GENT REMAINDERS,  UNBER  THE  CY  PRES  DOCTRINE, 
WHERE  THE  WORD  SON  OR  CHILD,  IN  A  DEVISE  OF  AN 
ESTATE  IN  REMAINDER,  IS  CONSTRUED  AS  A  WORD  OP 
LIMITATION. 

Where  a  testator  devises  in  remainder  to  the  un-  537 

born  child  of  a  prior  taker,  even  though  it  be  by 
the  designation  of  eldest  son,  but  he  appears  to  have  in- 
tended that  all  the  issue  of  the  prior  taker  should  inherit,  so 
far  as  the  rules  of  descent  will  permit ;  in  such  case,  to  give 
See  §  436.  effect  to  the  paramount  intent  of  admitting  all  the  issue,  the 
prior  taker  will  have  an  estate  tail,  and  the  description 
eldest  son,  child,  &c.,  will  not  be  regarded  as  a  designatio 
personx,  as  pointing  out  a  particular  individual  who  is  to 
take  by  way  of  contingent  remainder,  but  as  as  a  nomen 
See  §  403-4.  collectivum,  and  a  word  of  limitation. 

Doe  d.  Gar-      A  testator  being  seised  in  fee  of  freehold  land,  and  of 

rod  V.  Gar-    copyhold  intermixed  with  it,  and  descendible  to  the  youngest 

rod,  2  Bar.    son,  devised  the  same  in  the  following  manner:  As  to  my 

&  Add.  87.  worldly  estate  I  dispose  thereof  as  follows  :  I  give  to  my 

nephew  ./.  G.  all  my  lands,  to  have  and  to  hold  during  his 

natural  life,  and  to  his  son,  if  he  has  one;  if  not,  to  the 

eldest  son  of  my  nephew,  J.  G.,  during  his  natural  life,  and 

to  his  son  after  him;  if  not,  to  the  regular  male  heir  of  the 

G.  family,  as  long  as  there  is  one  of  them  in  being  ;  and  if 

they  should  be  all  extinct,  then  to  the  regular  heir  of  my 

nephew    T.   F.'s   family.     By   a  codicil,  stating,  that  his 

nephew  J.  G.  had  then  a  son,  he  gave  and  bequeathed  to 

him,  after  his  father's  decease,  all  his  lands,  both  freehold 

and  copyhold,  and  to  his  eldest  son,  if  he  had  one;  but  if  he 

had  no  son,  then,  to  the  next  eldest  regular  male  heir  of  the 


II.  1(5.)  OF  EXECUTORY  INTERESTS.         [§537.        [  2G8  ] 

G.  family,  as  long  as  there  should  he  one  in  being.     It  was 

held  that  /.  G.'s  son,  John,  took  an  estate  tail;  Lord  Tenter-        [  2G9  ] 

den,  C.  J.,  observing,  that  as  it  was  plainly  not  the  intention 

of  the  testator   that  the  estate  should  go  over  (o  the  next 

heir  male  of  the  (r.  family,  while  issue  male  of  John  shoidd 

remain,  tiie  greatest  chance  of  eirectualing  the  general  intent 

was  to  hold  that  John  took  an  estate  tail,     'i'he  consequence 

of  this  construction  was,  that  the  copyhold  descended  to  the 

youngest  son  of  John,  instead   of  going  to  "  the  eldest," 

while  the  freehold  would  descend  to  the  eldest.     But  His 

Lordship  remarked  that  this  was  a  mere  consequence  of 

law,  and  prol)ably  the   testator  never  contemplated  it,  and 

perhaps  never  knew  of  the  custom. 

Again;  a  testator  devised  his  real  estate  to  trustees  and  7?opd.Jo/?r.? 
their  heirs  upon  the  following  trusts:  "to  permit  my  daugli-  v.  Dorics,  4 
ter  not  only  to  receive  the  rents  and  profits  to  her  own  use,  Bar.  &Ado!. 
or  to  sell  or  mortgage  any  part,  if  occasion  requires;  but  43. 
also  to  settle  on  any  husband  she  may  take,  the  same,  or 
any  part  thereof,  for  life,  sliould  he  survive  her.  But  should 
my  daughter  have  a  child,  I  devise  it  to  the  use  of  such 
child,  from  and  after  her  decease,  with  a  reasonable  main- 
tenance for  the  education  &c.  of  such  child  in  the  meantime. 
Should  none  of  these  cases  happen,  I  give  and  devise  my 
real  estate,  from  and  after  my  daughter's  decease,  unto" 
&c.  It  was  held  that  the  word  child,  since  the  daughter 
had  no  child  at  the  time,  was  not  a  designatio  persnnx, 
but  comprehended  a  class;  and  that  the  daughter  took  an 
estate  tail ;  because  the  testator  had  prefaced  the  gift  by 
words  showing  that  he  contemplated  the  possibility  of  the 
estate  going  over  to  the  remainder-man,  in  the  event  only 
of  the  daughter  dying  unmarried ;  and  because  the  words 
introducing  the  gift  in  remainder,  "  should  none  of  these 
cases  happen,"  showed  an  intent  that  the  estate  should  only 
go  over  on  failure  of  the  issue  of  the  daughter. 


Vol.  II.— iJS 


[270]        11.17.1.]  AN  ORIGINAL  VIEW  [§538,539. 


CHAPTER  THE  SEVENTEENTH. 

CASES    OF    AN     ESTATE     TAIL,    BY     IMPLICATION    SIMPLY,    OR 
BOTH    BY    IMPLICATION    AND     BY    ANALOGY    TO    THE    RULE 

SccCh.XII.      ^^  Shelley's  case,  with  a  vested  remainder  over, 

IN    REAL     PROPERTY,    DISTINGUISHED     FROM     CASES     OF    A 

See  §  159-  ^^^^    estate,  and    a    contingent    remainder    over, 

19,5_  EITHER    WITH    OK    WITHOUT     AN     ALTERNATIVE     LIMITA- 

Scc  §  128-         tion;  or  of  a  life  estate,  with  a  limitation  over 

136^  OF    A    SPRINGING    INTEREST;    OR    OP    A    FEE,  WITH    A  CON- 

Sec§117-  DITIONAL    LIMITATION    OVER. 

127a,  148. 

158.  ~^^ 

SECTION  THE  FIRST. 
Rules  for  determining  whether  an  Indefinite  Failure  of 
Issue  is  meant,  or  merely/  a  Failure  of  Issue  within  a 
I  In  c  cviscs       certain    Time,  in  Cases  of  a   Limitation   over  on   a 
ofrcalestcito,       ^^.^^^,^  of  Issue. 
before  18J8,  '' 

ihc  words      I.  It  will  be  pGrceived,  from  tlie  cases  stated  in  538 

"  die  without  the  following  sections,  that,  as  regards  real  estate, 
issue,"  "  die  no  distinction  exists  between  the  words  "die  without  issue," 
without  leav-  ^nd  "  die  without  leaving  issue,"  and  "  in  default,"  or  "  on 
ing  issue,"  ^^  failure,"  and  "for  want  of  issue;"  but  that  all  those  ex- 
•' in  default,"  p^gggJQj-jg^  j^  devises  made  before  the  year  1838,  are  Con- 
or "on  fail-  stj.j^g(j  iQ  import  of  themselves,  an  indefinite  failure  of 
urc,"  or_"for  j^^^^^^ 

want  of  IS-         J  j^  j^^^j^  .^^  jj^g  ^^^g  ^^  personal  estate,  bequeathed  539 

ainiclTto^     before  the  year  1838,  while  the  words  "die  with- 
imnortan  in-  *^"^  issue,"  of  themselves,  are  construed  to  import  an  indc- 
dcfinitc'  ^1"'^°  failure   of  issue,  "the   words   "die  without  leaving 

failure  of  issue"  are  construed,  in  their  natural  and  obvious  sense, 
issue.  of  dying  without  leaving  issue  living  at  the  death  of  the 

See  §  563.  person  the  failure  of  whose  issue  is  spoken  of,(«)  because, 
[  271  ]  the  construing  them  to  refer  to  an  indefinite  failure  of  issue, 
II.  But  in  would  not  benefit  the  issue,  in  the  case  of  personal  estate, 
bequests  of  by  implication  in  favour  of  the  parent,  in  the  same  manner 
personal  cs-  as  that  construction  would,  in  the  case  of  real  estate.  And 
tate,  before    this  distinction  between  real  and  personal  estate,  as  to  the 


(a)  Atkinson  v.  Hutchinson,  3  P.  W.  258;  Read  v.  Snell,  2  Alk.  642  ;  and 
Lampley  v.  Blower,  3  Atk.  396;  as  stated,  Fearne,  473.  Goodtitle  d.  Peake 
V.  Pcgden,  2  D.  and  E.  720;  Vortir  v.  Bradley,  3  D.  and  E.  143;  and  lioe 
d.  Sheers  V.  Jrffcry,  7  D.  and  E.  559  ;  as  slated,  Fearne,  474,  note  («). 


II.  17.  i.]     OF  EXECUTORY  INTERESTS.  [§510.        [  271   ] 

words  die  without  leaving  issue,  is  observed  even  where  1^38.  tho 
both  kinds  of  property  are  hniited  over  in  the  same  words,    words  "die 
A  testator  devised  real  estate  to  his  eldest  son  -V.,  and  the  \viilioutleav. 
heirs  of  his  body  ;  and,  in  case  of  his  death,  without  leaving  '""  '^'^"^' 
issue  of  his  body,  then  over.     The  testator  then  bequcatlied  ,\'^||'i^,,"p,,'^'^ 
the  residue  of  his  personal  estate  to  .V.;  -'H'^^  ''t:  directed,  that  '.'"'^^'.^'J'l.o 
m  case  .V.  should  die  wuhout  issue  ot  his  hotly,  tlie  residue  (,t|n.r^^prf.s. 
should  also  go  over.     Lord  Manners,  C,  held,  that  the  be-  ^j^^^^^  ^'.^.j.^.^ 
quest  over  of  the  residue  was  not  too  remote :  for,  by  the  construed  in 
word  "also"  the  testator  had  made  the  bequest  over  of  the  ji,.^t  maunor. 
residue  to  depend  on  the  same  event  on  which  he  had  before  <^^.^.  ^  503. 
limited  his  real  estates,  that  is,  on  the  death  of  the  fust  taker  /'y/^.^  y. 
without  leaving   issue.     And  hence,  on  the   authority  of /^.^.j,,^  2  P,_ 
Forth  v.  Chapman,  the  bequest  was  good.  &,  B.  4:3r). 

In  another  case,  a  testator  devised  freehold  and  leasehold  Uadford  v. 
estates  to  ^.  and  7i.,  as  tenants  in  common,  and  the  heirs  of  jiadforcL  1 
the  body  and  bodies  of  the  said  ^.  and  B.,  as  tenants  in  Keen,  4^0. 
common  ;  and  if  either  of  them  should  die  without  leaving 
issue,  then,  his  share  to  the  use  of  the  survivor,  and  the  heirs 
of  his  body;  and  in  case  both  of  them  should  die  without 
issue  of  his  or  their  body  or  bodies,  then,  to  the  use  of  C, 
for  life,  &c.     Lord  Langdale,  INI.  R.,  held,  that  the  limitation 
to  the  survivor  was  good,  on  the  authority  of  Forth  v.  Chap- 
man; and  that,  by  the  word  "  issue,"  in  the  succeeding  limi-  j^j  ^^xhQYO 
talion,  the  testator  intended  such  issue  as  were  to  take  under  ||,p  j^.yjgg 
the  prior  limitation ;  and  that  consequently  the  limitation  ^^^  ^j^^  j^^^^ 

over  was  not  too  remote.  ,^^.^1(3  jg  intro- 

540  III.  Where  property  is  devised  to  a  person  for  j^^ed  by 

life,  and  then  to  his  "  issue  male  and  his  heirs,"        [•  272  ] 
and  it  is  introduced  by  words  of  contingency  referring  to  the  words  of 
event  of  there  being  any  "  issue  male,"  and  prima  facie  im-  contingency, 
porting  a  condition  precedent ;  and  there  is  a  devise  over  in  and  the  limi- 
fee,  in  the  exactly  opposite  event  of  the  prior  taker  dying  tation  over 
"without  issue  male;"  it  is  evident,  from  the  form  and  Ian-  isanaltcrna- 
guage  of  the  limitations,  that  the  words  referring  to  a  failure  tive  to  take 
of  issue  male,  refer  to  the  non-existence  of  sons  or  a  son  ;  efl'cct  in  tlic 
and  that  the  devise  to  the  issue  male  is  a  contingent  remain-  opposite 
der  to  the  eldest  or  only  son  in  fee  ;  and  the  devise  over  is  a  <?vent  of 
concurrent  contingent  remainder,  as  regards  the  estate  of  the  "^'^'"*^  hcm^ 
prior  taker,  and  an  alternative  limitation,  in  regard  to  the  g*^  ^s"io8 
limitation  to  the  issue,  to  take  effect  merely  as  a  substitute  j^^^Q-f^^." 
for  that  limitation,  in  the  event  of  no  son  being  born.  ggj' 

This  rule  is  deduced  from  ''the  case  of  Loddington  v. 
Kime,  where  a  testator  devised  to  A.,  for  life,  without  im- 
peachment of  waste ;  and  if  he  have  issue  male,  then,  to 
such  issue  male  and  his  heirs  for  ever ;  and,  if  he  die  with- 
out issue  male,  then,  to  B.  and  his  heirs  for  ever.(A) 


(/>)  1  Salk.  2?4  ;  1  LI  Royni.  203;  as  stated,  Fcarno,  225. 


[  272  ]        ir.  17.  i.]  AN  ORIGINAL  VIEW         [§541—543. 

IV.  \Vhcrc         IV.  And  '^  where  property  is  devised  to  a  person  541 
the  devise  is  for  life,  aiul,  after  his  dealli,  to  iiis  children,  e(iiially, 

to  tlie  chil-  and  tlieir  heirs  ;  with  a  hniitation  over  in  case  lie  should  die 
drenoftlic  witliout  issue;  the  words  rc^ferring  to  a  failure  of  his  issue 
prior  taker,  j-efer  to  the  event  of  his  having  no  children,  so  as  to  intro- 
equally,  and  ^^^qq  a.n  alternative  limitation,  instead  of  denoting  an  in- 
/  u  ,  r'*'  definite  failure  of  issue,  so  as  to  show  that,  by  heirs  of 
uith  a  limi-   jjjg  children,  the  testator  meant  heirs  of  the  body,  and  thus 

,         introduce  a  remainder  over  after  an  estate  tail  in  the  chil- 
in  case  he        ,         ,  , 

should  die      ^^■^"•(^) 

without  issue,  which  is  an  alternative. 

V.  Where  V.  But  ''  where  property  is  devised  to  a  person  542 
the  devise  is  for  life,  and  then  to  his  issue  and  their  heirs,  and 

to  the  issue  the  issue  would  take  by  purchase  under  the  second  rule  in 

of  the  prior  the  thirteenth  chapter,  if  there  were  no  devise  over;  and 

taker,  and  there  is  a  devise  over  in  case  the  prior  taker  should  die 

[  273  ]  without  issue,  or  all  such  issue  should  die  without  issue;  it 

their  heirs;  is  evident  that  the  words  referring  to  the  prior  taker's  dying 

with  a  limi-  without  issue  refer  to  his  dying  without  children  ;  but  that 

tationoverin  ^]^q  words  providing  for  the  event  of  all  such  issue  dying 

case  he  without  issue,  clearly  show,  that,  by  heirs  of  the  issue,  the 

should  die  testator  meant  heirs  of  the  body  ;  and  consequently,  that  the 

without  IS-  children  of  the  prior  taker  were  intended  to  take  an  estate 

sue,  or  all  ^^-j^  instead  of  an  estate  in  (ee.{d)    So  that,  in  this  case,  there 

v^  J ,  ^•  is  a  life  estate,  with  a  contingent  remainder  over  in  tail,  fol- 

,.,;fu^,.f  ;.       lowed  by  a  limitation  which  is  to  take  effect  either  as  an 
without  IS-        ,  y      .„  ,  ,       ,  1  ,  ,  M  1  -1 

sue  •  which    alternative,  if  there  should  be  no  children,  or  as  a  remainder 
is  both  an      ^^^^^  ^'^  estate  tail  in  the  children,  if  there  should  be  children, 
alternative      ^^'^  there  should  afterwards  be  a  failure  of  issue, 
and  a  remainder  after  an  estate  tail. — See  §  128,  159,  668-9. 

VI.  Words         VI.  Words  referring  to  a  failure  of  ".smc/j  issue,"  543 
referring  to    may  either  refer  to  an  indefinite  failure  of  such 

a  failure  of    issue  in  general  or  of  issue  male  or  female,  or  not  to  an  in- 
such  issue      definite  failure,  according  to  the  degree  of  comprehensive- 
import  an       j^ess  of  the  antecedent  expressions,  to  which  the  restrictive 
indefinite        words  "  such  issue"  refer.     For, 
failure  of  is- 
sue, or  not,  according  to  the  degree  of  com- 
prehensiveness of  the  antecedent  expressions. 

1   Tl  o    d  ^'  ^^  ^^^^   antecedent   expressions,  to  which   the  words 

w'hcre'^^ch    "  such  issue"  refer,  are  sullicientiy  comprehensive  to  corn- 
expressions    P^^^^  ^'^  ^'^<2  is^"^  i"  general,  or  all  the  issue  male  or  female ; 
comprise  all  then,  the  words  "  such  issue"  refer  to  an  indefinite  failure  as 
the  issue  gc-  much  as  the  word  issue  when  standing  unrestricted, 
nerally  or  male  or  female. — See  §  570, 

(r)  Goodrigfit  d.  Docking  v,  Dunham^  Dougl.  Rep.  251,  or  3d  ed.  264,  as 
slated,  Fearnc,  375. 

{(1)  Doe  d.  Barnnrd  v.  Reason,  cited  3  ^ViIs.  244  ;  and  Fearno,  379.^ 


II.  17.  i]      OF  EXECUTORY  INTERESTS.  [§111.        [273] 

2.  But  if  the  antecedent  expressions,  to  which  the  words  2.  They  do 
"such  issue"  refer, comprise  some  only  of  the  issue  in  gene-  not,  where 
ral  or  of  the  issue  male  or  female;   then,  the  words  '-such  such  expros- 
issue"  refer  only  to  a  failure  of  the  particular  issue  hcfore  sions  com- 
1         ^c  i)ri.se  some 

spoken  of.  '    .       ,.  , 

So  that  if  land  is  devised  to  the  sons,  daugliters,  or  chil-  ^"'y  "^'  ^"^ 
dren,  in  remainder,  after  a  devise  to  their  parent,  and  there  ^'"'^l^^^  ^^male 
is  a  limitation  over,  in  default,  or  on  fiiilure,  or  for  want  of  ^'^  ^  ^^ ^ 
such  issue,  the  words  "in  default  of  such  issue"  &c.,  do  not        [  274  ] 
refer  to  the  issue  generally  of  the  prior  taker,  so  as  to  raise  ^j.  female. 
an  estate  tail  in  him,  by  implication,  ])ut  solely,  of  course,  to  As  where  the 
the  issue  before  described,  that  is,  either  solely  to  the  sons,  (Jcvisc  is  tu 
daughters,  or  children,  or  to  them  and  their  issue  before  dcs-  the  sons, 
cribed.     Thus,  daughters, 

or  cliildrcn,  of  the  prior  taker. 

544  (1)  '"Where   the   sons,   daughters,   or   children,  (1)  Where 

would  take  the  fee,  irrespectively  of  the  limitation  they  would 
over  in  default  of  such  issue,  or  a  limitation  of  the  same  im-  take  the  fee, 
port;  these  words  do  not  cut  down  the  fee  to  an  estate  tail,  the  limitation 
but  refer  solely  to  the  sons  &c.,and  the  limitation  over  is  an  ^"^^  "}  ., 
alternative,  to  take  effect  in  the  event  of  no  son,  &c.,  being  I''^""^  ot  surh 
born.(/)     (See§12S-13G.)  iranalSrna- 

A  testator  having  a  daughter  and  grand-daughter,  both  ^. 
named  12.,  devised  to   his  grand-dauglitcr  7?.,  for  life  ;   re-        ' 
mainder  to  trustees  to  preserve  contingent  remainders ;  re-  ™.  ^  ir  /^ 
mainder  to  the  use  of  the  issue  of  the  body  of  H.,  in  such  ^  i^j^^fyf  >^taf- 
parts,  shares,  and  proportions,  manner  and  form,  as  R.  should  Lj.fi '-j  j^^^^t 
appoint;  and,  in  default  of  appointment,  to  the  use  of  all  the'goi.' 
children  of  B.  lawfully  to  be  begotten,  and  their  heirs,  as 
tenants  in  common;  and,  in  default  of  such  issue,  to  the  use 
of  all  the  other  children  of  his  daughter  li.  to  be  begotten, 
and   their  heirs,  as  tenants  in  common;  and,  in  default  of 
such  issue,  to  the  use  of  his  own  right  heirs.     7?.,  the  grand- 
daughter made  no  appointment.     It  was  held  that  her  only 
child  took  an  estate  in  fee;   Lord  Ellenborough,  C.  J.,  ob- 
serving, that  the  words  "in  default  of  such  issue,"  referred 
to  the  "children"  of  B.,  and  not  to  their  "heirs;"  that  the 
daughter    might,  under  the   words   in  such   "  manner  and 
form,"  have  appointed  in  fee  to  all  or  any  of  the  children  ; 
so  that  no  argument  could  be  drawn  from  the  power  of  ap- 
pointment ;  and  that,  in  the  case  of  Ives  v.  Lcgge,  the  words 
were  "  in  default  thereof,"  which  might  well  be  referred  to 
the  word  "heirs;"  and  that  the  case  oi  Lewis  (\.  0/'7nond  v. 
IVarters  was  not  determined  on  the  ground  of  the  words 
"for  want  of  such  issue,"  being,  in  their  ordinary  and   pro-        [  275  ] 
per  sense,  referable  to  the  word  "heirs,"  but  on  this,  that  it 

(/)  Doe  d.  Comberbach  v.  Pcrryn,  3  Diirn.  &  East,  484  ;  as  stated,  Fcarne, 
o7tJ. 


[  275  ]        II.  17.  i.]  AN  ORIGINAL  VIEW  [§545,546. 

was  clear  the  testator  meant  the  first  and  other  sons  of  his 
eldest  son  to  take  in  snccession. 

(2)  Where  (3)  Whore  the  sons,danghters,or  children,  would  545 
they  would     take  estates  for  life,  irrespectively  of  the  limitation 

take  life  es-  over  "  in  default  of  such  issue,"  or  a  limitation  of  the  same 
tales,  siicli  import;  these  words  do  not  raise  an  estate  tail,  by  implica- 
limitation  ^Jq,^  i,i  favour  either  of  the  parent,  or  of  the  sons,  daugliters, 
over  IS  a  re-  ^j.  children,  but  refer  solely  to  the  sons  &c.,  themselves ;  and 
main  er  ca-  ^^^^  limitation  over  is  both  an  alternative  and  a  remainder, 
t-V'^^o-*^  (T  ^^'  ^^  least,  it  is  a  rcmaintlor,  capable  of  taking  eflect  either 
either' a.«  in  ^^  '^'^  alternative,  in  case  there  should  be  no  son  born,  or  as 
alternative  ^  remainder,  on  the  decease  of  the  sons  &c.,  as  the  case  may 
or  as  a  re-       ^<^-      i^^  §  ^^S,  159,  068—9.) 

maindor.  ^  testator  devised  to  his  daughter  E.,  for  life;  remainder 

Goodri"-htA  to  her  first  and  other  sons;  and  for  want  of  such  sons,  to 
Lloyd  V  '  ''^''  slaughters,  erpiaily,  &c. :  and,  in  default  of  such  issue  of 
Jones  4  ^•'  then,  to  his  daugliter  M.,  for  life;  remainder  to  her  first 
Mau.  dj  ^'1^^  other  sons;  and,  for  want  of  such,  to  the  daughters  of 
Sel.  88.  -^^'5  o<lually,  &c. :  and  for  want  of  all  such  issues,  to  his  own 

right  heirs.     E.  had  a  daughter.     It  was  held,  that  it  ap- 
peared from  the  ultimate  limitation,  that  the  words  "in  de- 
fault of  such  issue,"  meant,  if  there  should  be  no  issue,  or, 
being  issue,  if  such  issue  should  fail. 
Foster  v.  In  anotiier  case,  a  testator  devised  to  his  nephew,  7'.,  for 

Lord  Rom-  life  ;  remainder  to  trustees  &c. ;  remainder  to  all  and  every 
net/, 11  East,  the  son  and  sons  of  the  body  of  T.,  severally  and  succes- 
S94.  sively;  and,  for  default  of  such  issue,  the  testator  devised 

the  estate  to  three  other  nephews  in  succession,  and  their 
sons  respectively,  in  the  same  manner.      T.  had  a  son.     It 
was  held,  that  the  nephews  and  their  sons  took  life  estates. 
Hay  V.  Lord      And  so  where  a  testator  devised  to  j2.,  for  life  ;  remainder 
Coventry,  3   to  trustees  &c.;  remainder  to  her  first  and  other  sons  in  tail 
I),  &  E.  83.  male  ;  and,  in  default  of  such  issue,  to  the  use  of  the  daugh- 
ters of  ./?.,  lawfully  issuing,  as  tenants  in  common  ;  and  in 
default  of  such  issue,  to  his  own  right  heirs.     It  was  held 
that  the  only  daughter  of  ./?.  took  an  estate  for  life  only; 
[  27G  ]        Lord  Kcnyon,  C.  J.,  observing,  that  if  the  word  "such"  had 
not  been  introduced,  the  Court   might  perhaps  have  said, 
that  as  issue  is  ^' genus  qeneralissitnum,"  it  should  include 
all  the  progeny.     But  tiiat  there  the  word  "such"  was  rela- 
tive,and  restrained  the  words  which  accompanied  it. 

(3)  Whore  (3)  «  Where  the  sons,  daughters,  or  children,  546 
thoy  would     would  take  estates  tail,  irrespectively  of  the  limita- 

tako  estates    tjon  over  "in  default"  of  such  issue,  or  of  a  limitation  of 

tail,  such  ii-  ^j^g  same  import;  these  words  refer  to  the  sons,  daughters, 

rnitationoycr  ^^j.  children,  and  their  issue  before  described  and  inheritable 

IS  a  rcnnain-  ^^^^J^.^.  tj^g  entail ;  and  the  limitation  over  is  both  an  alterna- 

'/',  u^"^       tive  and  a  remainder,  or,  at  least,  it  is  a  remainder,  capable 

'^n-^'*.''";?  of  takiuG:  effect  cither  as  an  alternative,  in  case  there  should 
effect  cillicr  ^  ' 


II.  17.  i.]     OF  EXECUTORY  INTERESTS.  [§547,548.        [  27G  ] 

be  no  son  &.c.  born,  or  as  a  remainder,  on  tlio  death  of  the  as  an  ulter- 
sons  &.C.,  and  the  extinction  of  issnc  inheritable  nnder  the  native  or  as 
entail.(5-)  ,        .  a  remainder. 

A  testator  devised  to  seven  of  liis  sisters,  for  hfe,  share  Ladi^  Dacre 
and  share  alike;  and,  after  tlic  decease  of  any  of  them,  her  v.  Doe,  in 
share  to  go  to  her  first  and  other  sons  in  tail;  and,  in  default  Error,  S  I), 
of  such  sons,  to  and  amongst  her  daughters  &c.     It  was  &  K.  112. 
held,  upon  the  whole  will,  that  the  daughters  took  an  estate 
tail,  notwithstanding  the  mere  birth  of  a  son. 

In  another  case,  a  testator  devised  to  D.  0.,  his  eldest  son,  Lezvis  <i. 
for  life;  remainder  to  trustees  to  preserve  &c.;  remainder  Ormoml  \. 
to  the  first  and  other  sons  of  Z).  O.,  and  their  heirs;  and,  for  Wafers,  6 
want  of  such  issue,  to  his  second  son,  J.  O.,  &c.,  with  like  I'^ast,  336. 
remainders  to  his  first  and  other  sons;  and,  for  want  of  such 
issue,  to  the  testator's  own  right  heirs.     It  was  held,  that 
the  first  and  other  sons  of  D.  O.  took  estates  tail  in  suc- 
cession;   the   words  "such  issue,"  referring  to  the  word 
"  heirs." 

547  VII.  Where  the  limitation  over  is  on  failure  of  yjj^  ^yj^j,^^ 
issue  generally,  but  the  testator,  in  another  passage,  jj^^  j^^y^  ,^■^^.Q 

refers  to  the  same  persons  by  the  name  of  children,  and  referred  to 
thereby  explains,  that  by  the  word  issue,  he  means  children  ;  by  the  name 
of  course  it  is  the  same  as  if  the  limitation  over  were  ex-  of  children, 
pressly  on  failure  of  children.  and  thereby 

explained  to  mean  children. 

A  testator  gave  his  bank  stock  to  trustees,  in  trust  for  F.        [  277  ] 
J3.  for  life  ;  and  his  funded  property  to  the  same  trustees,  in  Ellis  v.  Sel- 
trust  for  fF.  li.  E.,  for  life;  and,  from  and  after  his  decease,  hy,  7  Sim. 
then,  upon  trust  (should  JV.  R.  E.  have  issue  of  his  body  ;^52.     Sec 
lawfully  begotten,  whether  male  or  female)  to  apply  the  in-  ^'^'^o  She/- 
terest  for  the  maintenance  and  education  of  such  issue,  till/^'^^'-  ^-^''^ 
21,  and  then,  to  transfer  the  capital  to  them.     And  he  di-  ^'7^/^'.-^'^ 
rected  the  trustees,  after  tbe  decease  of  F.  jS.,  to  pay  the  ^y^"  j"^"' ^^ 
dividends  of  his  bank  stock  to  TV.  R.  E.,  for  life  ;  and,  from  %^  ^.'^'    ^^j 
and  after  his  decease,  to  apply  the  dividends  and  capital  for      '       ' 
the  benefit  of  the  children  or  child  of  fV.  R.  E.,  in  such 
manner  as  he  had  directed  respecting  the  funded  property. 
And  should  fV.  R.  E.  die  without  issue  male  or  female  of 
his  body  lawfully  begotten,  then,  in  trust  for  certain  other 
purposes.     Sir  L.  Shadwell,  V.  C,  held,  that  the  ultimate 
trust  of  the  funded  property  and  bank  stock  was  not  too  re- 
mote, as  the  testator  had  himself  interpreted  issue  to  mean 
"  child  or  children." 

548  VIII.  Where  (he  whole  of  a  fund  is  given  to  the  VIII.  Where 
same    persons,   and    the    limitation    over    of    one  the  issue  are 

moiety  is  explained,  in  the  manner  mentioned  in  the  last  so  referred  to 

(g)  But  sec  Kccne  v.  Pinnock,  cited  3  Durn.  vl^  East,   495  ;  and  3  Fcarnc, 
379,  contra. 


[  277  ]        II.  17.  i.] 


AN  ORIGINAL  VIEW 


[§54S. 


in  the  limiki' 
lion  of  one 
moiety,  but 
not  in  the  li- 
mitation of 
another 
moiety. 
See  §  563. 


Carter  v. 
Bentall,  2 
Beav.  551. 


[  278   ] 


KirJcpatrick 
V.  Kirk- 
pat  rich-,  1.3 
Ves.  470. 


See§  549, 
553. 


proposition,  to  be  intended  to  take  cfTect  on  failure  of  chil- 
dren, instead  of  an  indefinite  failure  of  issue,  but  the  limita- 
tion over  of  the  other  moiety,  on  failure  of  issue  of  the  prior 
taker,  or  on  his  decease  without  issue,  is  not  so  explained; 
the  limitation  over  of  the  latter,  it  seems,  will  (except  in 
cases  governed  by  the  stat.  1  Vict.  c.  26,  s.  29)  be  construed 
to  be  intended  to  take  effect  on  an  indefinite  failure  of  issue, 
though  tiiere  may  appear  to  be  no  reason  for  supposing  but 
that  both  moieties  were  intended  to  go  over  in  the  same 
event. 

A  testator  gave  the  undisposed  of  income  of  his  personal 
estate,  and  the  rents  of  his  real  and  leasehold  estates,  to  his 
daughter,  for  life  ;  and,  after  the  decease  of  his  wife  and 
daughter,  he  gave  the  residue  of  his  real  and  personal  estate 
to  trustees,  upon  trust  to  sell,  and  pay  one  moiety  of  the 
produce  to  the  issue  of  his  daughter,  equally  between  them, 
to  be  paid  at  21;  and  if  only  one  child,  then  to  such  one 
child;  and,  in  default  of  such  issue,  he  gave  the  said  moiety 
unto  and  amongst  all  his  nephews  and  nieces  who  should 
be  living  at  the  decease  of  his  daughter.  And,  as  to  the 
other  moiety,  after  the  decease  of  his  wife  and  his  daughter, 
without  issue,  the  testator  gave  the  same  to  his  trustees,  in 
trust  as  therein  mentioned.  Lord  Langdale,  M.  R.,  held 
that  the  gift  over  of  the  first  moiety  was  not  too  remote,  as 
the  use  which  the  testator  had  made  of  the  words  "only  one 
child,"  and  "such  only  child,"  showed,  that,  by  the  word 
'•issue  "  in  this  clause,  he  meant  "  children;"  and  that  con- 
struction was  strengthened  by  other  expressions.  But  His  • 
Lordship  held,  that  the  gift  over  of  the  other  moiety  was 
too  remote :  for,  as  the  testator  had  made  a  distinct  gift  to 
the  issue,  and  had  explained  "issue"  to  mean  children  in 
the  first  clause ;  whereas  he  had  done  neither  in  the  second; 
tlie  Court  could  not,  upon  any  safe  principles,  imply  the 
gift  to  issue  or  children,  where  it  was  omitted,  or  give  to 
the  word  issue  the  meaning  of  "children,"  without  an  ex- 
planatory context,  or  any  reference  to  a  prior  limitation. 

In  a  case,  however,  wliere  a  testator  gave  to  each  of  his 
two  illegitimate  sons,  a  sum  of  money;  but,  in  the  event  of 
the  death  of  either  of  them,  before  21,  and  without  issue, 
his  share  to  go  to  the  survivor ;  but,  in  the  event  of  both 
dying  without  issue,  then  over ;  Lord  Erskine,  C,  held,  that 
the  ultimate  limitation  was  not  too  remote :  for,  on  the  au- 
thority of  Sheppard  v.  Lcssingham,  Amb.  122,  and  other 
cases,  if  a  preceding  limitation  over  is  made  to  depend  on  a 
dying  without  leaving  issue  living  at  the  death  of  the  person 
dying,  the  same  construction  is  to  be  given  to  the  words 
"dying  without  issue"  generally,  on  which  a  subsequent 
limitation  is  made  to  depend,  the  intention  appearing  the 
same,  though  the  limitations  arc  diflTerently  expressed  for  the 
sake  of  brcvitv. 


II.  17.  i.]  OF  EXECUTORY  INTEIIESTS.  [§519—552.        [  27S  J 

510  IX.    Where   property    is    ''(lovisc(l(/i)   or    'Ijc- jx.  Whrro 

qucatlicd(/)  to  a  person  indefmitely  or  otherwise,        r  ^79  ] 
witli  a  hmitatioii  over,  if  he  dies  under  a  certain  age  without  pi-oprriy 
issue;  tlie  words  importing  a  dying  withotU  issue,  evidently  is  limited 
refer  to  a  faihu'e  of  issue  at  his  death,  instead  of  denoting  over  on 
an  indefniite  faihue  of  issue.  death  undt;r 

a  certain  age,  without  issue. 

A  testatrix  devised  to  lier  grand-cliildrcn,  as  tenants  in  Toovcij  v. 
common  ;  but,  in  case  of  tlic  death  of  either  of  them,  under  Jlnsscft,  10 
age,  and  without  leaving  issue,  tlien  over.     It  was  held  that  l^ast,  400. 
the    testatrix   could    not  have   contemplated    an    indefinile 
failure  of  issue  at  any  remote  period  ;  because,  she  only 
looked  to  a  period  while  lier  grand-children  Avere  underage. 
And   that,  on  the  authority   of  Frogmorton  v.  ITolijday, 
.3  Burr.  16 IS,  and  Doe  v.  Ciindall,  9  East,  400,  the  grand- 
children took  the  fee,  with  executory  devises  over,  if  any  of 
thein  died  luider  21,  and  without  leaving  lawful  issue  living 
at  the  time  of  their  respective  deaths. 

550  X.  We  have  already  seen  that  where  a  testator  X.  \fhorea 
devises  over  an  estate  in  case  the  prior  taker  should  •'(-'visf  over 

die  under  a  certain  age,  or  without  issue,  or  in  case  he  should  '^."^1  f'<'"'f' 

die  within  any  other  limited  period,  or  without  issue;  the  ^^ '*'"""'! '""" 

word  or  is  construed  and,  so  that  the  failure  of  issue  is  held  '       P'riod, 

to  be  a  failure  of  issue  livnig  at  his  death.  (S  235—240.)       ^''  ^^"''^J"/ 

°  ^^  '        issue,  and 

or  is  construed  and. 

551  XI.   And  ''the  words   importing   a   failure   of  XI.  Where  a 
issue,  are  construed  to  refer  to  a  failure  of  issue  at  devise  over 

death,  where  the  devise  over  is  in  case  the  prior  taker  should  's  o»  the 

not  live  to  attain  a  certain  age,  or  should  live  to  attain  such  P*"'*^'"  t^dxer's 

age,  and  should  afterwards  die  without  issue. (/t)     These  "^"^''^  under 

words  do  not  denote  an  indefinite  failure  of  issue  so  as  to  ^certain  age, 

raise  an  estate  tail  by  implication;  because,  there  is  no  ap-  ''^  ""  "^ 

parent  intention  that  the  issue  should  take  in  the  event  of  ^,''' \f^"r" 
,.,..  L.i-  im  death  wiih- 

his  having  issue,  but  dymg  under  21.  ^^  j^^^^^i^ 

552  XII.  And  where  property  is  devised  to  a  person  ,...  Vy. ' 

and  his  heirs,  with  a  devise  over  if  he  should  die  ^  , "  ■ 

.  ri  (U'vj.'^o  over 

without  leaving  issue,  or  having  such  issue,  such  issue  should  • .  ■  ,  ,,  ^ 

die  under  21,  without  issue;  it  will  apjiear,  Iroin  the  nintli  ol        r  ogg  1 

the  foregoing  rules,  that  the  failure  of  issue  which  is  meant,  pveni  of 

is  a  failure  of  issue  of  the  children  of  the  prior  taker,  at  the  d,.ath  wiih- 

death  of  such  children,  under  age;  so  that  the  limitation  0^,1  lc;ivin««- 

over,  instead  of  being  a  remainder  after  an  estate  tail,  or  an  issue, or  hav- 

executory   hmitation   void   for   remoteness,   is   good   as   a  ing  sueh 

(//)   Thrvstont  d.  Small  v.  Denny,  1  Wils.  270;  as  stated,  Fen rne,  401,  470. 
(0  See  Kirkpalrick  v.  KirJqxitricI,;  13  Ves.  47G  ;  stated  §  .')4>i. 
(A)  (Hover  V.  Moncklon,  3  Bing.  15,  as  cited,  2  Jarnian's  rowell  on  Dcv.  573. 
V^OL.   II.— 29 


[  280  ]        II.  17.  i.]  AN  ORIGINAL  VIEW  [§553—555. 

issuejofsuch  conditional  limitation,  by  way  of  executory  devise,  to  take 
issue  dyiii"    effect,  at  the  furthest,  within  a  hfe  in  being  and  21  years 
under  a  cer-  from  tlie  death  of  the  testator, 
tain  age  wiihout  issue. — See  §  148-9,  706, 

Beachcroft  A  testator  devised  an  estate  to  .^.  and  liis  heirs,  &c.,  for 
V.  Broome,  ever;  and,  if  he  should  die  without  liaving  settled  or  disposed 
4  D.  &  E.  of  it,  or  without  leaving  issue  of  his  body,  or  having  such 
441.  issue,  such  issue  should  die  under  21  without  issue,  and  his 

son    IV.  should   then  be  dead,  wiihout  issue ;    then,  over. 
Lord  Kenyon,  C.  J.,  said,  that  he  should  have  thought  it 
extremely  clear  that  the  limitation  over  might  have  taken 
effect  as  an  executory  devise. 
XIII.  Where      XIII.     If  'personal  estate  is  given  to  two  or  553 

a  bequest       more  persons  for  life,  with  a  limitation  over  to  the 
over  is  to  the  survivor  or  survivors,  (simply,  without  adding  the  words, 
survivor,        executors,  administrators,  and  assigns,)  in  case  of  the  death 
without  of  any  or  either  of  such  persons  without  issue  ;  the  presump- 

words  ofli-  \\o\\,  prima  facie,  is,  that  the  word  survivors  is  used  in  the 
mitation.  plain  and  obvious  sense,  as  meaning  such  of  those  persons 
as  should  ^e  living  when  any  of  them  happened  to  die,  and 
not  as  simply  equivalent  to  the  word  "  others;"  and  that  the 
testator  did  not  not  refer  to  an  indefinite  failure  of  issue; 
but  that  he  referred  to  the  dying  of  any  of  them  without 
issue  living  at  their  death. (/) 
XrV  Where      XIV.  But  '"  where  the  words  executors  or  ad-  555 

a  beouest       ministrators,  are  added  to  the  word  survivor,  that 
over  is  to       word  furnishes  no  such  presumption  that  a  failure  of  issue 
the  survivor  ^^  death  was  contemplated. (w) 
with  words  of  limitation. 

[  281  ]  A  testator  charged  his  real  estate  with  two  legacies,  in 

Massey  v.  favour  of  E.  P.  and  V.  P. ;  and,  in  case  E.  P.  or  V.  P. 
Hudson,  2  should  die  without  issue,  then,  the  whole  of  the  two  legacies 
Meriv.  130.  was  to  be  paid  to  the  survivor,  his  or  her  executors,  admin- 
istrators, or  assigns.  E.  P.  died  without  issue,  in  the  tes- 
tator's lifetime.  Sir  W.  Grant,  M.  R.,held,  that  the  bequest 
over  was  too  remote  ;  and  therefore,  that  the  legacy  had 
lapsed.  Ilis  Honour  observed,  that  a  bequest  to  ,/!.,  after 
the  death  o{  B.,  did  not  import  that  t/?.  must  himself  live  to 
receive  the  legacy,  but  that  the  interest  vested  at  the  death 
of  the  testator,  and  was  transmissible  to  .^.'s  representatives, 
who  would  take  whenever  B.  died;  and  that,  for  a  similar 
reason,  a  bequest  to  ^.,  in  case  B.  should  die  without  issue, 
was  void  for  remoteness.     That  it  was  otherwise,  however, 

(/)  Ranelagh  v.  Ranelagh,  2  M.  &  K.  441.  Sec  also  Massey  v.  Hudson, 
2  Meriv.  130,  stated  §  b^-^.  Hughes  v.  Sayer,  1  P.  W,  .534;  as  stated  Fearne, 
472. 

(m)  But  see  Nichols  v.  SJcinncr,  Chanc.  Prec.  028 ;  as  stated,  Fearne,  472. 


II.  17.  i]  OF  EXECUTORY  INTERESTS.  [§55G— 551).        [  2S1  ] 

with  a  bequest  over  to  the  survivor  of  two  persons;  for, 
there,  primd  facie,  it  would  be  presumed  that  the  survivor 
was  meant  personally  to  enjoy  the  legacy.  But  that  the 
addition  of  the  words  executors,  &.c.  excluded  that  presump-  ^y  -^yup^g 

property  is 

556  XV.  "Where  a  testator   bequeathed   personal  bequeathed 
estate  to  his  two  daughters,  and  directed,  that  upon  to  two  sisters, 

the  demise  of  cither  of  them,  without  issue,  the  share  of  her  ^ith  a  limi- 
so  dying  should  go  to  her  sister,  without  adding  the  words,  tation  over, 
and  to  her  executors,  &c. ;  the  limitation  over  was  construed  on  the  death 
as  if  it  were  a  limitation  to  the  "survivor  ;"(7i)  because  the  of  one  with- 
dying  of  one  without  issue,  seemed  to  mean  a  dying  with-  out  issue,  to 
out  issue  in  the  lifetime  of  the  other,  her  sister. 

557  XVI.  "Where  the  words  introducing  a  limita-  XVI.  Where 
tion  over  of  personal  estate,  put  the  case  of  the  it  is  directed 

prior  taker's  dying  without  issue  indefinitely,  but  the  testa-  that  property 
tor  in  limiting  it  over,  adds  that  then  after  his  (the   prior  shall  go  over 
taker's)  decease,  the  property  shall  go  over;  in  such  case  the  »f\er  the 
failure  of  the  issue  is  construed  to  be  a  failure  of  issue  at  the  Pi'or  taker's 
prior  taker's  decease. (o)  decease. 

XVII.  PAnd  it  has  been  held,  that  where  a  testator  de-  y^rk  ^,?^  ^ 
vises  to  a  person  for  life,  and  no  longer,  and  after  his  decease  -^^li-*^  jierc 
to  such  of  that  person's  issue  as  he  should  by  will  appoint ;  ^  '"ii'tation 
and  in  case  he  should  die  without  issue,  then  over,  the  fail-  *^^j^j\'^'^*^' 
ure  of  issue  which  is  meant,  is  a  failure  of  issue  at  his  death  ;  benuest^o 
because,  it  is  to  be  intended  such  issue  as  he  should  or  might  ^^^^^^  of  the 

appoint  to.(;;)  prior  joker's 

559  XVIII.  Where  land  is  devised  to  a  person  and  jgg^g  j^g  he 

his  heirs,  with  a  limitation  over  on  failure  of  issue,  shall  appoint 
and  all  the  ulterior  limitations  dependent  upon  the  failure  of  to. 
issue,  are  for  life  only;  the  failure  of  issue  is  construed  to  XVIII. 
mean  a  failure  of  issue  at  the  death  of  the  prior  taker,  the  Where  all 
person  whose  issue  is  spoken  of;  because  it  is  not  likely,  in  the  ulterior 
such  case,  that  the  testator  was  contemplating  an  indefinite  limitations 
failure  of  issue,  as  that  might,  and  most  probably  would  not  are  for  life 
happen  until  very  many  years  after  the  death  of  the  objects  only. 
of  the  ulterior  limitations.     But  it  is  otherwise  where  some 
only  of  the  ulterior  limitations  are  for  life. 

In  Barloiu  v.  Sailer,  Sir  W.  Grant,  M.  R.,  said,  "Where  Barlotc  v. 
nothing  but  a  life  interest  is  given  over,  the  failure  of  issue  Salter,  11 
must  necessarily  be  intended  a  failure  within  the  compass  }_^s- '*'^'^- 
of  that  life.     But  where  the  entire  interest  is  given  over,  the  See  also  Doc 
mere  circumstance  that  one  taker  is  confined  to  a  life  interest,  ^  ,  '^^Vo 
furnishes  no  indication  of  an  intention  to  make  the  whole  ^"Tj^'oig! 

(n)  MacVmnon  v.  Peach,  2  Keen,  555.     But  see  Green  v.  Rod,  Fitzgibb.  68  ; 
as  stated,  Fearne,  481.     And  see  Fearne,  483. 

(o)  Pinhury  v.  Elkin,  1  P.  W,  563 ;  as  stated,  Fearne,  473. 
(/>)  Target  v.  Gaunt,  1  P.  W.  432 ;  as  stated,  Fearne,  472. 


[  2S2  ]        II.  17.  i.]  AN  ORIGINAL  VIEW  [§5G0— 5G2. 

stated  S  ")0S  bi'n^i'^''^^  depend  on  the  existence  of  Ihnl  person  at.  the  time 
.'  ,  '  when  the  event  hap])ens  on  which  the  iimilation  over  is  to 

Fe-irnc  488-  ^^'^^^  ctl'ect."     And  tliis  latter  point  was  decided  by  the  same 
9  '       '  learned  Judge  in  the  case  of  Boc/im  v.  Clarke. 

Boehm  v.  Clarke,  9  Ves.  580. 

XIX  Where      XIX.  ''The  same  construction  is  adopted,  where,  560 

the  deviso       on  laihn'e  of  issue,  the  property  is  devised  in  trust 
over  is  for      for  payment  of  debts(r/);  because,  it  could  not  be  supposed 
payment  of    that  the  testator  would  provide  for  the  payment  of  debts,  on 
[  283  ]        an  indefinite  failure  of  issue,  which  might  not  happen  for 
debts.  two  or  three  liundred  years. 

XX.  Where        XX.  Where  property  is  devised  to  a  person  and  561 

the  estate  is  his  heirs,  with  a  limitation  over  of  the  same  on 
subjeet  to  failure  of  his  issue,  subject  to  the  payment  of  a  sum  of 
the  payment  money,  to  be  disposed  of  by  his  will;  such  failure  of  issue 
of  a  sum  to  jg  construed  to  be  a  failure  of  issue  at  his  death, 
be  disposed  ^  testatrix  devised  to  AI.  H.  and  her  heirs  for  ever;  and, 
(if  by  the  jj^  gg^gg  jf  jj  should  die,  and  leave  no  child  or  children, 
will  ofthe  then,  she  devised  to  J",  ^.  and  her  heirs  for  ever,  paying 
prior  taker,  jqoo/.  to  the  executors  of  M.  H.,  or  to  such  person  as  she 
/><»(•  d.  .S'/M/7/i  should  by  will  direct.  It  was  held  that "  child  or  children," 
V.  Wehher,  n^eaut  issue;  but  yet  that  M.  IT.  took  a  fee,  with  an  execu- 
1  I'.ar.  »fe  ^^j.y  (JQvisQ  over,  which  was  not  too  remote  ;  for  the  pay- 
Aid.  / 13.  iiient  being  a  personal  provision,  and  to  be  made  to  a  person 
or  persons  appointed  by  M.  II.,  the  event  contemplated 
seemed  to  be  a  failure  of  issue  at  M.  II.'s  death,  and  not  an 
indefmite  failure  at  any  remote  period. 
Dor  (].  Kino-  In  another  case,  a  testator  having  an  only  son,  and  also  a 
V.  Frost,  '\  daughter  who  had  several  children,  devised  to  his  son,  W. 
Bar.  &  Aid.  F.,  and  his  heirs  for  ever,  all  his  lands  &c. ;  and,  if  JF.  F. 
546.  should  have  no  children,  child,  or  issue,  the  estate  was,  on 

the  decease  of  W.  F.,  to  become  the  property  of  the  heir  at 
law,  subject  to  such  legacies  as  TV.  F.  might  leave  by  will 
to  any  of  the  younger  branches  of  the  family.  It  was  held, 
that  IF.  F.  took  a  fee,  with  an  executory  devise  over,  in  the 
event  of  liis  dying  without  leaving  any  children  living  at 
his  decease;  because,  the  testator  spoke  of  the  estate  going 
over  "on  the  decease  of  W.  F.;  and  it  would  liave  been 
necessary  to  have  given  him  tlie  power  of  charging  the 
estate  with  legacies,  if  the  will  had  given  him  an  estate  tail, 
with  the  reversion  in  fee  to  him  as  heir  at  law. 
XXI  Where      XXI.  Where  limitations  in  tail  do  not  extend  to  562 

a  term  for      ^^^  I'^e  descendants  of  a  devisee,  and  a  term  created 
raisiii"  legu-  for  the  sole  purpose  of  raising  legacies,  is  limited  in  default 
ciesisTimitcd  of  such  issue  as  are  included  in  those  limitations,  but  the 


{q)  See  French  v.  Cnddell,  6  Bro.  Par.  Ca.  59  ;  and  Wellington  v.  Welling- 
ton, 4  Burr.  2165 ;  as  stated,  B'earnc  450,  note  {b.) 


ir.  17.  i.]      OF  EXECUTORY  INTERESTS.  [§5G3.        [283] 

legacies  are  not  given  till  a  ("ailuro  of  issnc  generally  ;  it  will  on  tho  cxpi- 
bc  presumed,  that  the  legacies  were  intended  to  be  given  on        [  284  ] 
the  same  event  on  which  the  term  is  to  arise;  and  that  the  ration  of  an 
failure  of  issue  on  which  tlie   legacies  are  given,  refers  to  estate  tail, 
the  failure  of  such  issue  as  arc  inheritable  nnder  the  prior  and 'he  lega- 
limitations.  cics  are  held 

A  teslatiix,  liaving  an  absolute  power  of  appointment  ^'^    ^  »'^*^" 
over  the  reversion  in  fee  simple  of  certain  lands,  devised  the  °"        sumo 
reversion  to  ^,'7.  for  life;  remainder  to  .^.'s  first  and  other  "^^^^  " 
sons,  in  tail  male  ;  remainder  to  ./7.'s  daughter,  in  tail  gene-  ^J^'^''^^  v- 
ral;  with  cross  remainders  between  them  in  tail ;  with  re-  ^^'^^"^  ^'"' 
mainder,  in  default  of  all  such  issue,  to  trustees,  for  the  term  jl'^^'/'ouo 
of  1000  years,  to  raise  and  pay  such  legacies  as  she  should     "'*'^' 
thereafter  give.     And,  in  a  subsequent  part  of  the  will,  she 
bequeathed,  from  and  after  the  decease  and  failure  of  issue 
of  Jj.y  certain  legacies,  the  better  to  secure  the  payment  of 
which,  she  charged  them  on  the  reversion  she  had  before  de- 
vised.   In  this  case,  there  was  no  limitation  to  carry  the  estate 
to  tlie  female  issue  of  the  sons;    and,  although  the  term 
was  limited  "  in  default  of  all  such  issue,"  that  is,  such  issue 
as  were  inheritable  under  the  prior  limitations,  yet  the  lega- 
cies were  not  given  till  after  "the  failure  of  issue  of  Ji." 
generally;  and,  as  there  might  be  female  issue  of  the  sons, 
the  bequest  might  not  be  capable  of  taking  elfect  nnlilsomc 
time  after  failure  of  the  issue  inheritable  under  tlie  prior 
limitations;  so  that,  in  lact,  the  bequest  appeared  to  depend 
upon  an  indefinite  failure  of  issue  of  Jl,  unsupported  by 
any  express  limitations  co-extensive  with  the  existence  of 
the   issue  of  ./Z,  and  consequently  seemed  to   be  void,  as 
being  too  remote.     Ihit  Sir  John  Leach,  V.  C,  held,  that  the 
legacies  were  well  charged.    And  this  decision  was  aliirnied 

by  Lord  Eldoii. 
5G3  XXII.  Certain  words  which,  in  a  will  made  be-  XXII.  En- 

fore  1S3S,  imported,  or  were  construed  to  import,  actmcnt  of 
an  indefinite  failure  of  issue,  will  now,  when  they  occur  in  stat.  1  Vict. 
a  will  made  since  the  beginning  of  that  year,  be  construed  c.  2G,  s.  29. 
to  mean  a  failure  of  issue  at  or  before  the  death  of  the  per- 
son whose  issue  is  referred  to.     For,  by  the  stat.  1  Vict.  c. 
26,  s.  29,  it  is  enacted,  "  that  in  any  devise  or  bequest  of  real 
or  personal  estate,  the  words  'die  without  issue,'  or 'die 
witliout  leaving  issue,'  or  'have  no  issue,'  or  any  other        [  285  ] 
words  which  may  import  either  a  want  or  failure  of  issue  of 
any  person  in  his  lifetime,  or  at  the  time  of  his  death,  or  an 
indefinite  failure  of  his  issue,  shall  be  construed  to  mean  a 
want  or  failure  of  issue  in  the  lifetime  or  at  the  time  of  the 
death  of  such  person,  and  not   an  indefinite  failure   of  his 
issue,  unless  a  contrary  intention  shall  appear  by  the  will, 
by  reason  of  such  person  having  a  prior  estate  tail,  or  of  a 
preceding  gift,  being,  without  any  implication  arising  from 


[  2S5  ]        TI.  17.  ii.]  AN  ORIGINAL  VIEW        [§564—565. 

such  words,  a  limitation  of  an  estate  tail  to  such  person  or 
issue,  or  otherwise  :  Provided,  that  this  Act  shall  not  extend 
to  cases  where  such  words  as  aforesaid  import  if  no  issue 
described  in  a  preceding  gift  shall  be  born,  or  if  there  shall 
be  no  issue  who  shall  live  to  attain  the  age,  or  otherwise 
answer  the  description  required  for  obtaining  a  vested  estate 
by  a  preceding  gift  to  such  issue." 

SECTION  THE  SECOND. 

Cases  of  a  Limitation  over  on  an  Indefinite  Failure 
of  Issue  of  a  Prior  Taker,  where  there  is  no  Expi^ess 
Devise  to  his  Issue. 

Rule  of  con-       Where  a  testator,  after  devising  real  estate  to  564 

struction.       one  person,  without  any  express  devise  to  the  issue 

of  such  person,  makes  a  devise  over  to  another  on  an  indefi- 
nite failure   of  issue  male  or  female,  or  issue   in  general, 
of  the   prior   taker ;  in  such  case,  the  prior   taker  has  an 
estate  tail  by  implication,  with  a  remainder  over  to  the  other 
person. 
The  princi-        This  construction  is  adopted  in  order  to  effectuate         564a 
pie  of  this      the  indirectly  declared  intent  that  the  estate  should 
construction,  not  go  over  till  an  indefinite  failure  of  issue  male  or  female, 

or  issue  in  general,  of  the  prior  taker. 
Two  co-ex-        For,  as  in  the  cases  comprised  in  the  thirteenth         564b 
isting  yet  in-  chapter,  so  also  in  those  falling  within  the  scope  of 
consistent      the  present  chapter,  where  there  is  a  limitation  over  on  an 
intents ;  indefinite  failure  of  the  issue  of  a  prior  taker,  there  are  gene- 

namely,  the  j-ally  two  co-existing  yet  inconsistent  intents,  of  the  same 
prunary  or  ^[^^^  a.s  those  which  exist  in  the  cases  treated  of  in  the  thir- 
paramount  jeenth  chapter;  the  one  of  which,  namely,  the  secondary  or 
r  2Sfi  1        i^ittor   intent,  is  sacrificed,  in  order  to   give  effect  to  the 

\,  „  1  other,  namely,  the  primary  or  paramount  intent.  (See  § 
me  secona-     ^     . 

ary  or  minor  -' 

intent,  which  is  sacrificed  to  the  former. 

How  the  pri-      This  primary  or  paramount  intent,  in  the  cases         564c 

mary  or  pa-  treated  of  in  the  present  chapter,  is  expressed  or 

ramount  in-  necessarily  implied  in  the  limitation  over  on  an  indefinite 

tent  13  mani-  failure  of  issue  of  the  prior  taker,  which  amounts  to  a  decla- 

fested.  ration  of  an  intent  that  the  estate  should  not  go  over  from 

^*^'^P^^^        the  prior  taker  or  takers,  till  an  indefinite  failure  of  issue  of 

>  •         the  person  whose  failure  of  issue  is  spoken  of. 

This  con-  This  construction  is  adopted,  as  well  where  the         564d 

struction  is    prior  limitation  is  in  words  which  would  pass  a 

adopted  fee,  as  where  it  is  indefinite,  or  expressly  for  life. 

where  the      For,  where  the  prior  limitation  is  to  the  ancestor  565 

prior  limiia-  and  his  heirs,  it  is  only  necessary  to  interpret  heirs 

tion  is  in  fee,  to  mean  heirs  of  the  body,  disregarding  the  word  assigns  as 


II.  17.  li.J  OF  EXECUTORY  INTERESTS.  [§56G— 568.        [  28G  ] 

mere  surplusage,  where  it  is  added.     Where  the  or  indefinite, 

566  prior  hmitatioii  is  inderiiiite,  the  raising  an  estate  or  for  hfe. 
tail  by  iniphcation,  virtually  supplies  the  want  of 

words  of  limitation,  in  the  devise  to  the  ancestor.  Sec  §  404. 

567  And  where  the  prior  limitation  is  expressly  for  life, 
the  raising  an  estate  tail  by  implication,  merely 

amounts  at   most  to  a  sacrifice  of  a  secondary  or  minor 
intent  for  the  purpose  of  effectuating  the  primary  or 

568  paramount  intent  of  the  testator.     And,  in  all  these 

cases,   it  gives  effect  to  the   general  rule,  tliat  a  Sec  §  190-9. 
limitation  shall,  if  possible,  be  construed  as  a  remainder, 
rather  than  as  an  executory  devise.     And  it  prevents  the 
intention  of  the  testator  from  being  entirely  frustrated  :  for,  Sec  §  117- 
if  the  limitation  over  were  construed  an  executory  devise,  12ra,  148- 
whether   it  were  a  limitation  of  a  si)ringing  interest  or   a  l-'^'^,  706, 
conditional  limitation,  it  would  be  void  for  remoteness:  and  '^^'^^ 
the  maxim  is,  it  magis  valeat  quam  pereat. 

A  testator  devised  the  rents  and  profits  of  his  freehold  Chapman  il. 
and  leasehold  estate  to  his  executors,  until  his  daughters  Scholcs  v. 
should  attain  21,  in  trust  to  improve  the  same,  for  the  ad-  Sc/wles,  2 
vantage  and  education  of  his  daughters;  and,  as  to  the  free-  Chitty,  643. 
hold  and  inheritance,  he  devised  the  same  to  his  daughters 
when  and  as  they  should  attain  21,  equally  between  them, 
and  their  heirs,  as  tenants  in  common  :  provided  that  if  both 
liis  daughters  should  die  without  lawful  issue,  then,  over. 
It  was  held  that  the  daughters  took  an  estate  tail. 

And  where  a  testator  devised  to  his  nephew ;  but,  if  he        [  287  ] 
should  die  without  male  heir,  then,  over;  it  was  held  an  Denn  d. 
estate  tail  in  the  nephew  by  implication.  Slater  v. 

Again;  a  testator,  after  confirming  liis  wife's  seiihment  Slater,  5j). 
of  part  of  his  estate,  devised  the  rest  to  his  daughter  and  &  ^-  •'^•^^• 
only  child,  and  her  heirs;  and  he  devised  that  part  settled  I)oe  d.  Ne. 
on  his  wife,  to  his  daughter,  after  the  death  of  his  wife ;  "i^'e  v.  Ri- 
and,  in  case  his  daughter  should  die  without  issue,  he  gave  ''^'**'  "^  P- 
her  a  power  of  appointment  over  the  whole  ;  and,  for  want  ^  ^-  ^'6. 
of  such  issue  and  appointment,  then,  the  same  should  go  to 
his  own  right  heirs.     It  was  held,  that  the  daughter  took  an 
estate  tail. 

So  where  a  testator  devised  a  messuage  to  his  son,  /.,  his  Doe  d.  Ellis 
heirs  and  assigns  for  ever ;  but,  in  case  /.  should  die  with-  v.  Ellis,  9 
out  issue,  then,  he  devised  the  same  to  the  child  with  which  l^»st,  382. 
his  wife  was  enceinte,  his  or  her  heirs  and  assigns  for  ever.  Sec  also  lioe 
It  was  argued  that  /.  took  a  fee,  determinable  in  the  event  v.  Scott  and 
of  his  dying  without  leaving  issue,  and  the  word  "assigns,"  Smart,  as 
and  the  word  "then"  were  relied  upon  in  support  of  that  stated, 
construction.     But   the  Court  held,  that   /.took  an  estate  l^^^^rnc,  473, 
tail,  according  to  Brice  v.  Smith,  1  Willes,  and  the  cases  "<^^^  («)• 
there  cited. 

So  where  a  testator  devised  to  his  son  and  his  right  licirs  Tciiny  d. 
for  ever,  a  certain  house  &.c.,  and  also  nine  closes ;  which  Agar  v. 


[  2S7  ]        II.  17.  ii.]  AN  ORIGINAL  VIEW  [§56S. 

Agar,  12       closes,  he  thereby  gave  to  his  son  and  his  heirs  for  ever, 
East,  2o2.      upon  this  condition  only,  that  he  shonld  pay  to  his  daugh- 
ter 12/.  a  year  till  she  attained  21,  and,  after  that  age,  pay 
her  300/. ;  and,  for  default  of  payment,  she  shonld  enter 
and  enjoy  the  closes,  to  her  and  her  heirs  for  ever;   and 
in   case   his  son   and    daughter   shonld  both   die    without 
leaving  any  child  or  issue,  then  over.     It  was  lield,  that 
the  son  took  an  estate  tail,  and  the  daughter  an  estate  tail 
in  remainder,  with  a  remainder  over;  such  being  plainly 
the  intention,  and  it  being  a  rule,  that  if  a  devise  over  can 
take  effect  as  a  remainder,  it  shall  not  be  taken  to  be  an 
executory  devise. 
Romilhj  V.         And  where  a  testator  devised  to  his  brother  //.  ^S*.,  all 
James,  6        his  real   estates,  subject  to  the  several  devises  in  his  will 
Taunt.  2G3.  afterwards  mentioned.     The  testator  then   devised  to   his 
brother's  son,  H.  S.,  the  younger,  a  certain  estate;  adding, 
at  the  conclusion  of  his  will,  tliat  in  case  H.  S.  and  II.  S'. 
[  2S8  ]        the  younger  should  happen  to  die,  having  no  issue  of  either 
of  tiieir  bodies,  then,  he  devised  all  his  real  estate  to  /.  C. 
and  his  heirs.     It  was  held,  that  the  last  clause  cut  down 
the  estates  of  II.  S.  and  IL  S.  the  younger  to  estates  tail ; 
and  that  //.  S.  the  younger  took  an  estate  tail,  with  re- 
mainder in  tail  to  H.  S'.,  remainder  in  fee  to  /.  C. 
Ddnsry  v.  So  where  a  testator  devised  to  his  eldest  son,  Ii.  D.,  and 

(rr'ifjlths,  \  his  heirs  for  ever,  all  his  manors  &c.,  and  personal  estate ; 
Mail,  vi:  ^Jt•l.  but,  if  Ii.  D.  should  die,  and  leave  no  issue,  then,  he  gave 
61.  all  his  aforesaid  manors  and  estates  imto  his  son,  JV.  D., 

and  his  heirs;  and,  if  he  should  die  without  issue,  then,  to 
his  son,  E.  C.  B.;  and  in  the  like  case,  to  his  son,  G.  H. 
D.,  and  in  like  case  to  his  son,  /.  D.;  and,  in  failure  of  issue 
from  him,  &c.     The  Court  of  King's  Bench  certified,  that 
Ii.  D.  took  an  estate  tail. 
Doe  i\.  Jones      And  where  a  testator  gave  his  real  estate  to  his  wife,  for 
V.  Oicens,  1  her  life;  and  then,  to  be  relinquished  to  his  son  B.  at  her 
B.  &  Ad.       decease.     And  he  directed,  that  if  B.  should   die  without 
318.  issue,  that  his  real  estate  should  go  equally  between  his 

daughters,  M.  and  S.,  for  the  life  of  M.,  and  at  her  death, 
the  whole  to  S.  and  her  heirs.  The  testator  also  directed 
that  if  B.  should  survive  his  mother,  he  should  pay  S'.  51. 
within  twelve  months  after  his  mother's  decease.  It  was 
See  §  559.  held,  that  B.  took  an  estate  tail,  with  a  remainder  over. 
Bailey,  J.,  observing,  that  if  life  estates  only  had  been  de- 
vised over,  lioe  v.  Jeffery  might  have  applied,  and  the 
terms  "die  without  issue,"  might  have  been  confined  to  a 
failure  of  issue  at  7?.'s  death,  that  is,  if  no  distinction  were 
to  be  insisted  upon  between  "dying  without  issue,"  and 
"leaving  no  issue."  But,  in  the  present  case,  the  inheri- 
tance was  given  to  <S'.,  and  woidd  have  passed,  though  M. 
had  died  in  the  lifetime  of  B. 


II.  17.  iii.J    OF  EXECUTORY  INTERESTS.  [§-,69,       [288] 

And  so  where  a   (estalor  devised  lands  to  trustees  uiid  Doc  d.  C'a- 
tlieir  heirs,  in  trust  to  apply  the  rents  to  the  maintenance  oft/";'"'*  v. 
/,  until  she  should  attain  the  age  of  25,  and  afterwards  in  AVur/,  7 
trust  for  /.  and  her  heirs;  but,  in  case  it  should  happen  that  -^'1-  ^  ^'^1- 
/.  should  depart  this  life  without  leaving  issue,  then  he  de-  ^^^• 
vised  the  lands  to  /F.  and  B.  in  fee.     There  were  divers 
trusts  which  rendered  it  necessary  that  the  trustees  should 
take  the   legal  estate  in  fee.     And  the  Court  held,  that  /.,        [  289  J 
who  died  under  25.  after  suffering  a  recovery,  in  which  the 
trustees  did  not  join,  took  a  vested  equitable  estate  tail;  and 
that  fV.  and  D.  took  equitable  remainders;  and  that  such 
equitable  remainders  were  barred  by  the  equitable  recovery 
sulfered  by  /. 

And  again,  wliere  a  testator  devised  lands  to  his  son,  J.,  Machdl  v. 
for  life;  but  if  J.  should  die  without  issue,  not  leaving  any  Wcniing,  8 
children,  then, he  directed  tliat  the  lands  should  be  sold,  and  Sim.  4. 
the  i)rocecds  divided  amongst  his  three  other  sons;  and  if 
any  of  them  should  die  before  J.,  then,  that  their  shares 
should  be  divided  among  their  children.     Sir  L.  Shadwell, 
V.  C,  held,  that  J.  took  an  estate  tail,  observing,  that  it  is  a 
settled  point,  that  whether  an  estate  be  given  in  fee,  or  for 
life,  or  generally  without  any  particular  limit  as  to  its  dura- 
tion, if  it  be  followed  by  a  devise  over  in  case  of  the  devisee 
dying  without  issue,  the  devisee  will  take  an  estate  tail. 

SECTION  THE  THIRD. 

Cases  of  a  Limitation  over  on  an  Indefinite  Failure  of 
Jssne  of  a  Prior  Taker,  ichere  there  is  an  Express  De- 
vise to  his  Issue,  eo  nomine. 

569  I.  Where  there  is  an   express  devise   to   the  I,  Wlirrcilic 

issue  in  general,  or  issue  male  or  female,  co  )i07ninc,  ancestor 
interposed  between  the  prior  devise  to  the  ancestor  and  the  lakes  an  es- 
subsequcnt  devise  over  on  an  indefinite  failure  of  his  issue  tate  tail  in 
in  general  or  issue  of  the  given  description ;  and  the  word  possession, 
issue,  in  the  intermediate  devise,  would,  according  to  the 
first  rule  in  the  thirteenth  chapter,  be  construed  a  word  of 
lin)itation,  if  there  were  no  such  devise  over;  of  course  the 
addition  of  such  devise  over  does  not  prevent  the  word  issue 
from  being  construed  as  a  word  of  linntation,  but  operates 
in  aid  of  that  construction  ;  so  that  the  ancestor  takes  an 
estate  tail  in  possession,  as  well  under  the  first  rule  in  the 
thirteenth  chapter,  by  analogy  to  the  Rule  in    Shellcy''s 
Case,  and  under  the  cy  pres  doctrine,  as  by  implication 
arising  from  the  devise  over  on  an  indefinite  failure  of  his 
issue.  Frankfin  v. 

A  testatrix  devised  an  estate  to  her  grandson  and   the  /mi/,  6  Mad. 
issue  of  his  body,  and  to  the  heirs  of  such  issue  lor  ever;  2o'!<. 
but,  if  her  said  grandson  should  die  without  leaving  any        [  290  ] 
\'oL.  II. — JO 


[  290  ]        II.  17.  iii.]  AN  ORIGINAL  VIEW  [§570. 

issue  of  his  body,  then,  she  devised  the  estate  to  her  nephew 
and  his  heirs  for  ever.     The  grandson  insisted  that  he  took 
an  estate  tail ;  but  the  defendant  contended,  tliat  the  words 
"leaving  issue,"   were   to   be  construed   as   leaving  issue 
living  at  his  death.     Sir  John  Leach,  V.  C.,held,  that  "leav- 
See  §  53S-9.  ing  issue,"  as  applied  to  real  estate,  imported  a  general 
failure  of  issue,  and  brought  the  case  within  the  authorities 
cited  by  the  plaintifl',  and  that  the  whole  will  might  be  re- 
conciled by  construing  the  words  "heirs  of  such  issue,"  as 
heirs  of  the  body. 
Murlhwaife       In  another  case,  a  testator  devised  to  his  three  nieces, 
V.  Barnard^  equally  to  be  divided  between  them,  share  and  share  alike, 
2  Bred.  &     for  the  term  of  their  respective  lives;  and,  after  their  de- 
Bing.  623.     cease,  he  desired,  that  the  lawful  issue  of  them  and  each 
r    \^°'^'     ^^  them  should  have  his  or  her  mother's  share  for  life,  in 
Miirthwaite  j^-g  manner;  and  that,  if  either  of  his  nieces  should  die  in 
^     ^9^'     ^''^  lifetime  of  the  others  or   other  of  them,  without  issue, 
^r       ^^Q  ^^^'^^  '^*^'"  ^'^^^^  should  be  shared  by  the  survivors,  for  their 
'  lives,  and  afterwards  by  their  issue.     And,  if  all  his  nieces, 
save  one,  should  die  without  issue,  then,  he  declared  his 
will  to  be,  that  such  surviving  niece  should  have  the  whole, 
for  the  term  of  her  life;  and,  from  and  after  her  decease, 
that  her  issue  should  have  the  whole,  to  hold  the  freehold 
part  to  them,  their  heirs  and  assigns,  as  tenants  in  common, 
and,  if  but  one,  to  such  only  one,  his  or  her  heirs  and  as- 
signs.    And  if  all  his  nieces  should  die  without  issue,  then 
over.     The  Court  of  Common  Pleas  certified,  that  the  nieces 
took  estates  for  life,  with  cross  remainders  between  them, 
for  life,  in  the  event  of  one  or  two  of  them  dying  without 
issue ;  and.   that  G.  B.,  son  of  one  of  the  neices,  took  an 
estate  tail  in  remainder  in  his  brotlier's  third  part,  subject  to 
be  devested  in  part  by  the  birth  of  other  children  of  his 
mother;  and  that  he  would  have  an  estate  tail,  in  the  whole, 
in  the  event  of  his  being  the  only  issue  of  the  three  nieces 
living  at  the  death  of  the  survivor  of  them,  no  other  issue 
having  been  born.     But  the  Court  of  King's  Bench  certified, 
that  the  nieces  took  estates  tail. 
It  is  imma-         ^'^  ^^^^  case  supposed  in  the  preceding  rule,  it  is  570 

terial,  in  the  immaterial  whether  the  expression,  in  the  devise 
r  291   1        over,  is,  "issue,"  indefinitely,  or  "such  issue  ;"  because  the 
■-  -|        word  issue  in  the  intermediate  devise,  in  the  supposed  case, 

suppose  being  construed  a  word  of  limitation,  and  therefore  embrac- 

th     'th      '     ^^^  ^"  ^^^  descendants  generally,  or  of  the  given  description, 
•      •       in  infinitum,  a  failure  of  "such  issue,"  is  tantamount  to  a 
the  devise      failure  of  "  issue  "  indefinitely.     (See  §  543.) 
over  is  "  issue,"  or  "  such  issue." 

Benn  d.  A  testator  devised  to  N.  W.,  for  life,  without  impeachment 

Webb  V.        of  waste  5  and,  after  his  decease,  to  the  issue  male  of  his 


II.  17.  iii.]    OF  EXECUTORY  INTERESTS.  [§570.        [291] 

body  lawfully  begotten,  and  to  the  heirs  and  assigns  of  such  Pucketj,  .5 
issue  male  for  ever;  and,  for  default  of  such  issue  male,  Dura.  & 
then  over.  N.  IV.  suffered  a  recovery  before  lie  had  any  East,  299. 
issue.  It  was  held,  that  A''.  IV.  took  an  estate  tail.  Lord 
Kenyon,  C.  J.,  observed,  that  nothing  could  be  clearer  than 
that  the  first  intention  of  the  devisor,  was,  to  give  only  a  lite 
estate  to  N.  IV.,  but  that  his  general  intention  was,  that  the 
male  descendants  of  N.  JV.  should  take  the  estate,  and  that 
none  of  those  to  whom  the  subsequent  limitations  were 
given,  should  take,  until  all  the  male  descendants  of  A^  IV. 
were  extinct;  and  that  general  intention  would  be  best  an- 
swered by  deciding,  that  N.  IV.  took  an  estate  tail.  For,  if 
he  took  an  estate  for  life,  it  would  be  ditlicult  to  extend  the 
estate  to  the  issue,  to  more  than  one  son ;  and  he  conceived 
that  the  eldest  must  have  taken  the  absolute  interest  in  the 
estate.  But  that  would  defeat  the  devisor's  intention;  be- 
cause, if  it  descended  to  that  one  son,  and  he  had  died  with- 
out making  any  disj)osition  of  it,  it  would  have  gone  to  the 
other  grandsons  of  the  devisor,  the  persons  interested  under 
the  subsequent  limitations.  But  that,  even  if  these  words 
comprehended  all  the  male  issue  as  tenants  in  common  in 
tail,  that  would  not  have  answered  the  devisor's  intention ; 
because  there  were  no  words  to  create  cross  remainders 
between  them.  The  Court,  however,  held,  that  even  if  A". 
IV.  were  tenant  for  life,  with  a  contingent  remainder  in  fee 
to  his  children,  if  he  had  any,  and,  if  he  had  none,  then  a 
contingent  remainder  over;  still,  all  the  limitations  over 
were  destroyed  by  the  recov^ery  which  destroyed  the  parti- 
cular estate. 

Where  a  testator  devised  to  ^^.  for  life,  without  impeach-  FranTc  v. 
ment  of  waste,  and  with  a  power  of  jointuring ;  and,  from  Siovin,  3 
and  after  his  decease,  then,  to  the  use  of  the  issue  male  of  East,  548. 
his  body  and  their  heirs;  and  in  default  of  such  issue,  over.        [  292  ] 
It  was  held,  that  r-^.  took  an  estate  tail,  according  to  Jioe  v.  Sec  also  Roe 
Greiv,  2  Wils.  322.  d-  Dodson 

Another  case  may  be  noticed  in  this  place,  in  which  a  v.  Greir,  2 
testator  devised  to  his  wife,  for  life;  and  after  lier  decease,  ^*''^-  ^f^'* 
that  the  estate  should  be  settled  by  able  counsel,  and  go  to  ?L^  ^'^    ,'qo. 
and  amongst  his  grandchildren  of  the  male  kind,  and  their       ,^"S.'     "' 
issue  in  tail  male;  and,  lor  want  ol  such  issue,  upon  his 'r,      ,  ,?    ' 
female  grandchildren.     Sir  Thomas  Plumer,  V.  C,  held,  on  .     ,    g-g. 
the  authority  of  Blackburn  v.  Slablcs,  and  Dodson  v.  Grciv,  ^^  stated  and 
2  Wils.  322,  that  a  grandchild  of  the  testator  took  an  estate  commented 
tail   male;   though   His  Honor  admitted,  that  this  was  an  on   Fearne 
executory  trust ;  and  that  the  Court,  in  executing  such  a  363-4. 
trust,  does  not  adhere  to  the   formal  words  used   by  the  ;\iarshnU  v. 
testator,  but  will  modify  them  so  as  to  effectuate  the  real  jiousficlJ,  2 
intent.  Mad*  166. 


[  292  ]        II.  17.  iii.]  AN  ORIGINAL  VIEW        [§571—573. 

II.  Whore  II,  Where  there  is  an  express  devise  to  the  issue  571 

(upon  princi-  in  general,  or  issue  male  or  female,  eo  nomijie,  in- 
ple)  the  an-    definitely,  or  for  life,  or  in  tail,  interposed  between  the  prior 
cestor  would  devise  to  the  ancestor  and  the  subsequent  devise  over  on  an 
take  an  cs-     indefinite  failure  of  iiis  issue  in  general  or  issue  of  the  given 
tate  tail  in      description  ;  and  the  word  issue,  in  the  intermediate  devise, 
lemaindfr.     ^yQ^^i^j^  according  to  the  second  rule  in  the  thirteenth  chapter, 
be  construed  a  word  of  purchase,  if  there  were  no  such  de- 
vise over;    the  better  opinion  upon  principle,  though  not 
upon  authority,  would  clearly  seem  to  be,  that  the  addition 
of  the  devise  over,  docs  not  prevent  the  word  issue  from 
being  construed  a  word  of  purchase,  and  the  intermediate 
devise  from  conferring  a  distinct  estate  upon  the  issue,  unless 
See  §  583.     the  object  of  the  intermediate  devise  is  to  create  a  perpetual 
succession  of  life  estates ;  but  yet,  that  it  raises  an  estate 
tail,  by  implication,  in  favour  of  the  ancestor,  to  take  eflfect 
in  remainder  after  the  intermediate  estate  conferred  upon 
the  issue. 
Absurdity  of      Such  would  seem  to  be  the  better  opinion  upon  572 

contrary        principle  ;  because  it  would  appear  perfectly  ab- 
doctrine.        surd  to  hold  that  the  addition  of  the  devise  over,  by  the  mere 
force  of  implication,  has  the  effect  of  annihilating  an  express 
intermediate  devise,  which,  but  for  such  devise  over,  would 
confer  a  distinct  estate  on  the  issue,  and  to  maintain  that 
[  293  ]        the  devise  over  has  such  an  effect,  although,  by  a  different 
construction  adopted  in  analogous  cases,  full  eflect  could  be 
given  to  it  in  another  way,  which  would  completely  accom- 
See  §  564a-  plish  the  primary  or  paramount  intent,  denoted  by  it,  of  ad- 
564c.  mitting  all  the  issue,  and  yet  without  sacrificing  the  secon- 

dary or  minor  intent,  of  giving  the  immediate  issue  an  estate 
by  purchase. 
Observations      There  are  indeed  decisions  which  support  this  573 

on  the  fact     doctrine  to  some  extent ;  but  probably  these  cases 
that  there       would  have   been  differently  decided,  if  the  construction 
are  decisions  above    mentioned,  and   the  decisions  bearing  by  analogy 
in  support  of  ypQ,-^  ^^ic,  point,  had  been  suggested  and  sufficiently  urged 
the  contrary  ^pj,,^  the  Court.     And  experience  has  shown,  as  a  learned 
doctrine.        author  observes  with  respect  to  another  question, ""  that  no 
rule  of  construction,  however  sanctioned  by  repeated  adop- 
tion, is  secure  of  permanence,  unless  founded  in  princi- 
ple."(rt) 
Doe  d.  In  one  of  these  cases,  a  testator  devised  to  JV.  D.,  to  hold 

Blandford  to  him  during  his  natural  life;  and,  after  his  decease,  to  and 
V.  App/in,  4  amongst  his  issue;  and  in  default  of  issue,  over.  It  was 
D.  &  E.  82,  held,  in  order  to  efl'ectuate  the  general  intent,  that  /f.  D. 
and  observa-  took  an  estate  tail.  This  case  has  been  sometimes  considered 
tions  there-    as  showing  that  words  of  distributive  modification  do  not 

on.  

(«)  2  Jarinan'.s  Powell  on  Devises,  738. 


II.  17.  iii.]  OF  EXECUTORY  INTERESTS.  [§573.        [  203  ] 

prevent  the  parent  from  takini^  an  estate  tail  in  possession, 
but  may  be  rejected  as  rcpncjnant.  And  in  snpport  of  this 
view,  it  may  imleed  be  ur2:ed,that  Bnlier,  J.,  remarked,  tliat 
that  constrnction  rendered  it  necessary  to  reject  the  words, 
"and  amongst."  IJnt,  settins;  aside  the  probabihty  that 
these  words  were  merely  added  by  mistake,  currcnte.  cahnno, 
it  does  not  seem  at  all  necessary  to  reject  them:  for,  they 
may  fairly  be  considered  as  referring,  not  to  a  tenancy  in 
common,  or  a  joint  tenancy,  bnt  merely  to  the  case  of  two 
or  more  coheiresses  or  their  representatives. 

And  in  another  case  a  testator  devised  a  messnage  to  R.  Doe  d.  Cock 
C,  for  the  term  only  of  his  natural  life  ;  and,  after  his  de-  v.  Cooper,  1 
cease,  to  the  lawful  issue  of  li.  C,  as  tenants  in  common  ;  East,  229. 
but,  in  case  R.  C.  should  die  without  leaving  lawt'ul  issue, 
then  and  in  such  case,  after  his  decease,  he  gave  the  same        [  294  ] 
to  E.  H.     It  was  held,  on  the  authority  of  Robinson  v,  Rob- 
inson, 1  Burr.  3S;  Roc  d.-  Doclson  v.  Grew,  2  Wils.  323;  and 
Doe  d.  Candfer  v.  Smith,  7  T.  R.  531,  that  R.  C.  took  an 
estate  tail,  on  the  ground,  that  it  was  the  general  intent  that 
all  his  issue  should  inherit  the  entire  estate,  before  it  went 
over.     In  the  argument,  no  notice  seems  to  have  been  taken  Observations 
of  ''the  words,  "  then  and  in  such  case,  after  his  decease,"(6)  on  JJoe  d. 
taken  in  connexion  with  the  distinction  which,  in  cases  of  Cocfc  v. 
personal  estate,  is  drawn   between   the   words   "  without  Cooper. 
issue,"  and  the  words  "  without  leaving-  issue,"  which  are  ^'^^  §  ^^^* 
the  words  used  in  this  case.    These  several  expressions  seem  ^38-9. 
clearly  to  show,  that  the  limitation  over  to  IJ.  II.  was  to 
take  etfect,  not  on  an  indefinite  failure  of  issue  of  7i'.  C,  but 
in  the  event  of  his  leaving  no  issue  at  his  decease.     And  if 
so,  they  do  not  show  that  the  intention  was,  that  all  the 
issue,  i.  e.,  all  the  descendants  of  R.  C.  siiould  inherit  the 
whole  estate  before  it  should  go  over,  so  as  to  raise  an  estate 
tail  in  R.  C.  by  implication.     And  if,  then,  R.  C.  took  a  life 
estate  only,  according  to  the  express  terms  of  the  will,  fol- 
lowed by  a  devise  to  his  issue,  as  purchasers,  which,  as  being 
indefinite,  only  gave  them  a  life  estate;  what  is  the  nature 
of  the  limitation  to  E.  II.?    It  is  not  a  conditional  limitation;  Sec  §  148- 
because,  it  was  not  to  cut  short  the  preceding  interest  of  the  158. 
issue  of  ^.  C,  before  it  would  expire  according  to  the  terms 
of  its  original  limitation.     =  It  would  clearly  seem  to  be  an  Sec  §  12S- 
alternative  limitation  :  for,  it  would  appear  to  be  a  devise  of  130. 
an  estate  for  life  to  R.  C,  followed  by  two  concurrent  con- 
tingent remainders  ;  namely,  if  7i.  C.  should  leave  any  issue, 
then,  to  such  issue  as  tenants  in  common ;  but  if  he  should 
die  without  leaving  any  issue,  then,  to  E.  H.{c)     But  what- 

(h)  See  Doe  d.  Kins:  v.  Frost,  as  stated,  §  561. 

(«•)  Sec  Hoclh'ii  V-  Mawhoj,  1  Vcs,  142  ;  Doc  d.  Dni^y  v.  litirnsall,  G  D.  v5c 
E.  30;  and  Doc  d.  Gihnaa  v.  Elvcij,  4  East,  313;  staled  §  530. 


[  294  ]        II.  17.  iv.] 


AN  ORIGINAL  VIEW        [§574—577. 


[  295  ] 


Ward  V. 
Bevil,  1 
You.  &  Jcr, 
512. 


Observation 
on  Ward  v. 
Bevil. 
See  §  13. 

III.  Where 
no  estate  tail 
can  be  raised 
in  remain- 
der. 


I.  Where 
(upon  princi- 
ple) tlie  an- 
cestor would 
take  an  es- 
tate tail  in 
remainder. 
[  296] 


See  §  583. 

Rules  de- 
duced by  Mr. 


ever  may  have  been  tlie  nature  of  the  limitation  to  E.  II.,  it 
is  conceived  that  if  the  words  of  the  will  above  alluded  to 
had  been  pressed  on  the  Court,  they  would  not  have  held 
that  H.  C.  took  an  estate  tail  by  implication  :  for  surely  it 
must  appear  that  the  alleged  ground  for  such  implication  did 
not  exist ;  or,  even  admitting  that  the  words  did  denote  an 
indefinite  failure  of  issue,  and  consequently  that  there  was 
ground  lor  the  implication  of  an  estate  tail,  yet,  tliat  a  dis- 
tinct effect  should  have  been  given  to  the  devise  to  the  issue 
as  tenants  in  common,  and  an  estate  tail  raised  by  implica- 
tion in  R.  C,  in  remainder. 

However,  the  same  construction  was  adopted,  even  where 
a  testator  devised  a  messuage  to  his  son,  during  the  term  of 
his  natural  life  ;  and,  in  case  he  should  have  issue,  it  was 
his  will  that  they  should  jointly  inherit  the  same  after  his 
decease.  And  all  the  residue  of  his  property,  real  and  per- 
sonal, he  gave  to  his  son ;  but  in  case  his  son  should  die 
without  issue,  then,  it  was  his  will  that  the  whole  of  his 
property  should  be  ascertained  &c.  It  was  held,  that  the 
words  in  the  first  clause,  taken  by  themselves,  would  give 
the  son  an  estate  for  life  only ;  but  that  in  consequence  of 
the  subsequent  words,  "  in  case,"  &c.,  he  took  an  estate  tail 
in  the  real  estate,  and  the  absolute  interest  iuthe  personalty. 
This  is  a  strong  decision,  as  the  devise  to  the  issue  was  in- 
troduced by  words  of  contingency  prima  facie  importing  a 
condition  precedent,  though  indeed  it  was  a  condition  which 
would  have  been  necessarily  implied. 

III.  Of  course,  if  the  issue  were  held  to  take  in     574-5 
fee  by  purchase,  no  estate  tail  could  be  raised  by 
implication  in  remainder.     (See  §  159,  165.) 

SECTION  THE  FOURTH. 

Cases  of  a  Limitatioii  over  on  an  Indefinite  Failure 
of  Issue  of  a  Prior  Taker,  where  there  is  an  Express 
Devise  to  his  Sons,  Daughters,  or  Children,  eo  nomine. 

I.  Where  there  is  an  express  devise  interposed  576 

between  the  p.-ior  devise  to  the  ancestor  and  the 
limitation  over  on  an  indeliuite  failure  of  his  issue,  and  that 
intermediate  devise  is  not  to  his  issue,  eo  nomine,  but  to  his 
sons,  daughters,  or  children,  indefinitely,  or  for  life,  or  in 
tail;  the  sounder  construction,  upon  principle,  if  not  upon 
authority,  would  seem  to  be,  that  the  words,  introducing  the 
limitation  over,  raise  an  estate  in  him,  by  implication,  in 
remainder  after  the  estate  limited,  by  the  intermediate 
devise,  to  his  sons,  daughters,  or  children  ;  unless  the  object 
of  the  intermediate  devise  is  to  create  a  perpetual  succession 
of  life  estates. 

A  learned  and  talented  writer  on  the  construe-  577 


II.  17.1V.]     OF  EXECUTORY  INTERESTS.         [§578.        [  296  ] 

tion  of  deviscs,(r/)  has  submitted  the  following  propositions,  Jarmun  from 
as  "  plainly  dediicible"  from  the  cases  : —  die  cases. 

«  1st.  That  the  words,  in  default  of  issue,  or  words  of  a 
similar  import,  following  a  devise  to  children,  in  tail  or  in 
fee,  mean  in  default  of  children. (c)  This  is  free  from  all 
doubt. 

"  2dly.  That  these  words,  following  a  devise  to  all  the 
sons  successively  in  tail  male,  and  daughters  concurrently  in 
tail  general,  are  also  to  be  construed  as  importing  *wc/t  issue, 
even  in  the  case  of  an  executory  trust. (/) 

"  3dly.  That  words  devising  the  property  over  on  a 
failure  of  issue  male,  following  a  devise  to  the  whole  line  of 
sons  successively,  in  tail  male,  are  also  referential  to  such  ob- 
jects ;(o-)  but  not,  it  seems,  where  such  sons  take  for  life 
only  ;  in  which  case,  they  will  raise  an  implied  estate  tail 
in  the  parent. (/t) 

"4tlily.  That  where  there  is  a  prior  devise  to  a  certain 
number  of  sons  only,  in  tail  male,  with  a  limitation  over  in 
case  of  default  of  issue  or  issue  male  of  the  parent,  an  estate 
tail  will  be  implied  in  the  parent,  to  carry  it  to  the  other 
sons.(/) 

"  Stilly.  That  in  the  case  of  executory  trusts,  words  im- 
porting a  dying  without  issue,  following  a  devise  to  the  first        [  297  ] 
and  other  sons  of  a  particular  marriage,  in  tail  male,  will  be 
held  to  authorise  the  insertion  of  a  limitation  to  the  parent 
in  tail  general,  in  remainder  expectant  on  those  estates. (A-) 

"Gthly.  That  such  words,  (whether  they  refer  to  issue 
or  issue  male)  following  a  devise  to  the  eldest  son  in  tail, 
will  not  be  referable  to  such  son  exclusively,  but  will  give 
the  parent  an  estate  tail;(/)  and  where  the  devise  was  to 
him  and  his  heirs,  these  words  were  held  also  to  cut  down 

liis  fee  to  an  estate  tail." 
578  JVow  admitting  this  to  be  the  result  of  the  then  Observ^ations 

existing  authorities,  it  is  conceived  that  it  would  on  these 
be  very  unsatisfactory  for  the  law  to  remain  in  such  a  state,  rules. 


{d)  Mr.  Jarman,  in  his  Treatise  subjoined  to  Powell  on  Devises,  551. 

(e)  Goodright  v.  Dunham,  Doug.  764.  See  also  Ginger  d.  (Fhitc  v.  While, 
Willes,  348. 

( f)  Blackhorn  v.  Edgley,  1  P.  W.  600 ;  Morse  v.  Marquess  of  Ormonde, 
5  Mad    99. 

(g)  Bamfcld  v.  Popham,  1  P.  W.  54,  700  ;  1  Eq.  Ca.  Ab.  183,  2  Vein. 
427,  449. 

(/j)    Wight  V.  Leigh,  15  V<>s.  4G4. 

{i)  Langley  v.  Baldwin,  1  P.  W.  759;  1  Eq.  Ca.  Ab.  185,  pi.  29;  1  Ves. 
Sen.  26,  S.  C. ;  Jlttorncy-Gtncral  v.  Sutton,  1  P.  W.  754;  S.  C  in  Dom. 
Proc.  3  B.  P.  C.  Toml.  Ed.  75. 

(A)  Jlllanson  v.  CUtherow,  1  Ves.  Sen.  24. 

(/)  Stanley  v.  Lcnnard,  1  Ed.  87;  Doc  d.  Bean  v.  Hullcy,  6  T.  U.  5. 


[  297  ]        IT.  17.  iv.]  AN  ORIGINAL  VIEW  [§579. 

In  those  cases  where  the  words  "in  default  of  issue,"  &c., 
are,  according  to  the  first  and  second  of  these  rules,  and  the 
first  part  of  the  third  rule,  not  held  to  raise  an  estate  tail  hy 
implication  in  the  ancestor,  but  are  considered  as  referential 
to  the  objects  before  described,  it  is  of  course  necessary  to 
supply  the  word  "  such,"  making  the  words  "  in  default  of 
issue,"  to  mean,  in  these  cases,  "  in  default  of  such  issue:" 
while,  in  the  other  cases,  falling  under  the  last  part  of  the 
third  and  the  three  following  rules,  the  words  "  in  default  of 
issue,"  are  allowed  to  retain  their  unrestricted  meaning. 
What  foundation  is  there  for  this  distinction?  Wiiat  is  it 
that  authorises  the  Court  to  supply  the  word  "  such,"  and 
thereby  restrict  the  meaning  of  the  words,  in  the  former 
cases,  and  yet  not  in  the  latter?  It  would  seem  that  there 
is  but  one  answer  that  can  be  given — it  is  mere  unnecessary 
conjecture,  however  probable  it  may  be.  It  is  true,  that 
there  is  a  far  greater  probability  that  the  word  issue  was 
used  by  the  testator  as  merely  referential  to  the  objects  be- 
fore described,  in  the  cases  foiling  under  the  first  two  rules, 
and  the  first  part  of  the  third,  than  in  the  cases  falling  under 
the  latter  part  of  the  third  and  the  subsequent  rules.  But 
still  this  is  evidently  a  mere  question  between  different  de- 
[  298  ]  grees  of  probability,  the  highest  of  which  comes  far  short 
of  moral  certainty,  necessary  implication,  or  violent  pre- 
sumption. Nor  is  it  the  most  probable  of  two  or  more 
conjectures,  founded  in  some  measure  upon  the  words  of 
the  instrument,  and  made  in  a  case  where  some  conjecture 
must  be  resorted  to,  in  order  to  give  eflect  at  all  to  the  limi- 
tations, ut  res  niagis  valeat  quam  pcreat.  On  the  con- 
trary, it  is  a  conjecture  which  controls  and  restricts  the 
words  themselves,  though  the  limitations  would  be  capable 
of  taking  eflect  without  any  such  restriction. 

The  learned  author  above  referred   to,   whose  579 

work  was  published  in  the  year  1827,  before  he 
proceeds  to  submit  the  foregoing  rules,  observes,  that  "in 
the  present  state  of  the  authorities  it  is  extremely  dangerous 
to  hazard  any  general  conclusions  upon  the  subject."  And, 
even  looking  to  those  authorities  alone,  in  connexion  with 
the  preceding  remarks,  it  would  be  too  much  to  regard  the 
doctrine  as  perfectly  settled  upon  authority,  much  less  as 
satisfactory  upon  principle.  I'ut  the  fact  is,  that  subse- 
quent decisions  have  either  overruled  those  cases  which 
construe  the  words  "in  default  of  issue,"  &c.,  as  merely 
referential ;  or  have  completely  unsettled  the  point. 
Parr  v.  A  testator  devised  real  estate  to  Ji.  for  life;  and,  after  her 

Swindds,  4  decease,  unto  and  equally  between  and  among  the  cliildren 
Russ.  283.     of  .-/?.,  and,  in  case  she  shoidd  die  without  leaving  any  law- 
ful issue,  then,  over.     Sir  John  Leach,  M.  R.,  held  that  .^. 
took  an  estate  for  life  ;  with  remainder  to  her  children,  as 


II.  17.  iv.]  OF  EXECUTORY  INTERESTS.  [§5S0.        [  298  ] 

tenants  in  common,  for  life ;  remainder,  by  implication,  to 
xd.  in  tail. 

And  where  a  testator  devised  to  M.  11.  and  A"".  //.,  in  re-  Franks  v. 
maindcr,  dnring  tiie  term  of  llieir  natural  lives,  share  and  Price,  o 
share  alike;  and,  in  case  either  should  die  witliout  leaving  Bi"g.  New 
issue  male  of  his  body,  then,  to  the  survivor,  during   the  Cases,  87. 
term   of  his  natural  life;  and  if  M.  II.  should  (after  the 
deaths  of  the  prior  takers)  die  before  N.  II.,  leaving  issue 
male  of  his  body ;  then  one  moiety  of  tlic  estate  to  the 
first  and  other  sons  of  M.  II.,  successively,  in  tail  male; 
and,  in  default  of  such  issue,  to  N.  II.  for  the  term  of  his 
natural  life,  and,  after  his  decease,  to   his  first  and   other 
sons,  successively,  in  tail  male ;  with  similar  limitations  of        [  299  ] 
N.  //.'s  moiety,  in  case  he  should  die  before  M.  H.;  and, 
in  case  M.  H.  and  N.  II.  should  both  die  without  leaving 
any   issne  male,   or,  such  issue  male  should  die    without 
leaving  any  issue  male,  then,  to  such  person  or  persons  as 
should,  at  the  death  of  the  survivor  of  them  the  said  M  H. 
and  N.  II.,  be  the  testator's  right  heir  or  heirs.     It  was 
argued,  that,  in  the  ultimate  limitation,  an  indefinite  failure 
of  issue  was  meant;  and,  that  Iherelbre  N.  II.,  in  whose 
lifetime  M.  II.  died  without  issue,  took  an  estate  tail  in 
tiie   whole.     And   the    Court   of  Common   Pleas  certified 
accordingly. 

This  decision  would  seem  to  be  wrong.     The  ultimate  Observations 
limitation  over  is  indeed  postponed  till  an  indefinite   failure  <J»  Iranks 
of  issue  ;  but  then,  it  appears  to  be  postponed  till  an  indefi-  ^''  J^^'icc. 
nite  failure  of  issue  of  the  sons,  and  not  of  il/.  //.  and  N.  II. 
themselves;  and  consequently,  the  limitation  over  merely 
corresponds  with,  and  is  referential  to,  the  estate  tail  express- 
ly given  to  the  sons.     For,  when  it  provides  for  the  case  of 
i\L  II.  and  N.  II.  dying  without  leaving  any  issue  male, 
those  words  do  not  refer  to  an  indefinite  failure  of  issue; 
the  words  issue  male  there  do  not  mean  all  the  descendants, 
but  merely  the  sons:  for,  if  it  meant  all  the  descendants, 
then  there  would  be  no  sense  in  the  latter  branch  of  the  limi- 
tation over,  providing  for  the  case  of  such  issue  male  dying 
without  leaving  any  issue  male. 

The  Court,  however,  appears  to  have  considered  the  limi- 
tation over  as  amounting  to  a  limitation  over  on  an  indefi- 
nite failure  of  issue  male  of  M.  H.  and  N.  II.  themselves; 
and,  as  such,  sufficient  to  raise  an  estate  tail  in  N.  II.  by  im- 
plication, and  not  merely  as  referential  to  the  estates  tail 
given  to  the  sons.  And  hence,  whatever  may  be  its  autho- 
rity, it  is  opposed  to  the  third  of  the  foregoing  propositions  See  §  577. 
deduced  from  the  cases  by  the  learned  author  above  refer- 
red to. 
580  Looking,  then,  to  these  two  decisions,  and  to  the  Sujrgcsted 

preceding   remarks   upon   the   previous  cases,  it  result  of  the 
Vol.  II.— 31 


[  299  ]        II.  17.  iv.]  AN  ORIGINAL  VIEW         [§581—583. 

preceding  would  seem  that  the  authorities  upon  the  point  nnist  now 
cases  and  ro-  be  regarded  as  conflicting  ;  and  that,  in  future,  the  Courts 
marks.  ought  to  adopt  that  construction  which  principle  alone  would 

appear  to  suggest.     And  that  construction,  it  is  humbly  snb- 
[  300  ]        mittcd,  is  the  one  which,  in  accordance  with  llie  recommen- 
dation of  Lord  Redesdale,  does  "not  rely  on  petty  distinc- 
tions which  only  mislead  parties,  but  looks  to  the  words 
used  in  the  will ;"(?/?)  that  construction,  which,  instead  of 
allowing  the  estate  to  go  over  before  a  failure  of  issue,  con- 
trary to  the  express  words,  raises  an  estate  tail  in  the  parent, 
so  as  to  effectuate  the  testator's  primary  or  paramount  intent 
of  admitting  all  the  issue,  so  far  as  the  rules  of  descent  will 
permit,  and  yet  does  not  sacrifice  his  other  intent  to  give  his 
sons,  daugh'ters,  or  children,   an  estate   by  purchase,  but 
raises  an  estate  tail  by  implication  in  remainder  after  the 
estate  or  estates  so  taken  by  the  sons  &c.  by  purchase. 
Observations      "  I  have  from  long  experience,   (says  a  learned  Judge) 
ofLord  Chief  been  extremely  fearful  of  adopting,  as  a  system,  a  theory  of 
Baron  Rich-  what  may  be  the  supposed  intention  of  the  testator.     I  am 
ard.s  on  the    perfectly  persuaded,  that  that  is  not  the  just  mode  of  collect- 
intention  of    i,jg  the  intention  of  the  testator.     We  must  collect  it  from 
testators.        the  paper  itself."(/z) 

II.  Where  II.  Of  course  "if  the  sons,  daughters,  or  children  581 
there  can  be  were  held  to  take  estates  in  fee  simple,  no  such  es- 

no  estate  tail  tatc  tail  could  be  raised  by  implication  in  remainder.  (See 

in  remainder.  §  159,  ifi5.) 

And  if,  after  a  prior  devise  to  the  ancestor,  the  582 

properly  is  devised  to  his  unborn  sons,  daughters,  or 
childreu,and  their  heirs,  the  words  "in  defauh  of  issue"  &c. 
of  the  ancestor  wiU  be  construed  to  refer  simply  to  the  sons, 
daughters,  or  children,  instead  of  being  referred  also  to  their 
heirs,  and  of  being  regarded  as  showing  that  the  heirs  meant 
are  heirs  of  the  body,(f>)  as  they  would  where  the  property 
is  devised  to  the  ancestor  and  his  heirs,  with  a  devise  over 
in  default  of  issue,  without  any  intermediate  devise  to  the 
sons,  daughters,  or  children ;   in   which  case,  as  we  have 

Sec  §  5G4,     already  seen,  it  is  established  that  the  word  heirs  means 

565.  heirs  of  the  body. 

III.  Whore  III.  If,  as  already  intimated,  the  object  of  the  in-  583 
[  301   ]        termediate  devise  is  to  create  a  perpetual  succes- 

the  ancestor  sion  of  life  estates,  it  will  be  disregarded,  and  the  ancestor 
will  take  an   will  take  an  estate  tail  in  possession, 
estate  tail  in 
possession. 

(m)  In  Jesson  v.  Wright,  2  Bligh,  51. 
(n)  iiichards,  C.  B.  in  Driver  \.  Frank,  8  Taunt  484. 

(0)  (roodright  d.  Docking  v.  Dunham,  Doiigl.  Rep.  251,  or  3d  cd.  2G4  ;  as 
stated,  Fearnc,  375. 


II.  17.  V.J    OF  EXECUTORY  INTERESTS.  [§584.        [  301  ] 

A  testator  directed  his  trustees  to  pay  and  divide  the  Mortimer  \. 
rents,  and  profits,  and  interest  of  his  real  and  personal  ^^^V,s/,li  Sim. 
estate  to  and  amongst  .^.,  B.,  C,&c.,  [who  were  the  illegi-  -~4. 
mate  children  of  il/.  I).C\  for  their  Hvcs;  and,  after  tlieir  de- 
cease, to  their  respective  children,  for  life;  and  so  to  he  con- 
tinued, 77^7-  stirpes,  from  issue  to  issne,  for  life.  But,  if  any 
of  the  said  children  of  M.  />.,  or  their  respective  issne,  should 
die  leaving  no  issue,  then,  the  share  of  him  or  her  so  dying, 
to  go  and  be  divided  amongst  the  surviving  brothers  and 
sisters,  equally,  for  their  lives,  and  among  the  issue  of  any 
deceased  brothers  or  sisters,  according  to  the  share  their 
parent  would  have  had;  and,  for  default  of  any  such  issue 
descending  from  the  said  children  of  M.  J).,  then  over. 
The  Vice-Chancellor  observed,  that  besides  the  intention  to 
give  hfe  estates,  there  was  an  intention  that  the  estates  should 
not  go  over  until  there  was  a  general  failure  of  issue ;  and 
that  that  circumstance,  according  to  Seaward  v.  IVillock^ 
and  Jesson  v.  IVriglit,  compelled  him  to  hold  that  the  chil- 
dren took  estates  tail  in  the  real  estates.  The  decree  also 
declared  that  they  had  cross  remainders  in  tail  in  the  real 
estate ;  and  that  they  took  the  leaseholds  and  personal  estate  See  §  593. 
absolutely.  593a. 

SECTION  THE  FIFTH. 

Cases  of  a  TAmitation  over  on  a  Failure  of  Children  onhj 
of  the  Prior  Taker,  or  on  a  Failure  of  Issue  within  a 
certain  Time. 

584  Where  the  limitation  over  is  to  take  effect,  not 

on  an  indelinite  failure  of  issue  of  the  prior  taker, 
but  on  a  failure  of  children  only,  or  on  a  failure  of  issue 
within  a  given  time  ;  there,  the  limitation  over  will  not  raise 
an  estate  tail,  by  implication,  in  the  prior  taker,  but  lie  will 
liave  a  life  estate,  with  a  contingent  remainder  over;  or  a  See  §  117- 
life  estate,  with  a  limitation  over  of  a  springing  interest ;  or  1~~^^)  148- 
a  fee,  with  a  conditional  limitation  over,  as  the  case  may  be.  1^-- 

A  testator  devised  to  .S'.  ^S'.,  her  heirs  and  assigns  for  ever;        L  "^^^  J 
but,  \(  S.  S.  should  die  leaving  no  child  or  children,  lawful  yj^^   r  11 
issue  of  her  body,  living  at  the  time  of  her  death,  then,  over.  '(/'7/'"  'o^' 
It  was  held,  that  *S'.  *S'.  took  a  fee,  with  an  executory  de-  „       "c   n"! 
vise  over,  and  not  an  estate  tan,  with  a  remainder  over.  g.-,. 

Lands  were  devised  to  a  trustee  and  his  heirs,  in  trust  to  q^c'fjiso 
pay  annuities  to  several  persons;  and,  from  and  after  their  pjuni-et  v. 
decease,  in  trust  for  D.,  L.,  V.,  and  S.,  (females) ;  and,  in  jlolmcs,  1 
case  any  of  them  should  die  leaving  a  daughter  or  daugh-  Lev.  11;  as 
ters,  then,  the  share  of  her  or  them  so  dying  should  go  to  stated, 
such  daughters  as  they  should  be  in  seniority  of  age.     Pro-  Foarno,  341. 
vided  always,  that  in  case  any  of  them  the  said  D.,  L.,  J'.,  Bennett  v. 
and  S.,  should  happen  to  depart  this  life  without  issue  in  Lowe,  7 

Bins.  535. 


[  302  ]        II.  17.  vi.]  AN  ORIGINAL  VIEW        [§585—587. 

the  lifetime  of  the  said  annuitants,  then,  that  the  share  of  her 
or  them  so  dying  sliould  go  to  certain  other  persons  in  suc- 
cession. And  the  testatrix  devised  all  the  residue  of  her 
estates  to  the  said  7).  The  Judges  certified,  that  D.,  L.,  V., 
and  S.,  took  life  estates;  that  the  three  daughters  of  D.,  L., 
and  J\,  took  life  estates  in  remainder  in  their  parents'  shares ; 
and  that  D.  took  the  remainder  in  fee  in  the  whole  of  the 
premises. 

SECTION  THE  SIXTH. 

I.  Where  the  Cases  of  a  Limitation  over  on  an  Indefinite  Failure  of 
person  Issue  of  a  Pei^son  to  whom  no  Expi'ess  Devise  is  made. 

whose  failure      j^  Where  a  testator  devises  to  one  person,  after  585 

of  issue  IS  ^^^  indefinite  failure  of  issue  of  another  to  whom 
spoiven  ot,  IS  ^^  g^press  devise  is  made,  but  who  is  the  heir  apparent  or 
h  Ira  arent  '^"^i^  presumptive  of  the  testator,  the  better  opinion  seems  to 
orpresLunp-  ^e,  that  an  estate  tail  will  arise  by  implication  to  such  per- 
tive  and  he  son,  whose  faihu'e  of  issue  is  referred  to,  and  consequently 
take's  an  es-  that  the  interest  to  take  eflect  on  that  failure  of  issue,  will 
tate  tail.  not  be  a  springing  interest,  but  a  remainder  after  an  estate 
See  §117-  tail  by  implication  in  the  heir  apparent  or  heir  presump- 
127a.  tive. 

Reasons  for       For,  in  the  first  place,  the  rule  is,  that  a  limita-  586 

this  cnn-        tion  shall,  if  possible,  be  construed  as  a  remainder, 
St  ruction.       rather  than  as  an  executory  devise. 

See  §  19G-9.  Secondly,  the  construction  ought,  if  possible,  to  be,  itt  res 
[  303  ]  maffis  val'eat  qiiam  pcrcat.  And  if  the  devise  on  an  inde- 
finite failure  of  issue,  is  an  executory  devise,  it  is  void  for 
See  §  706,  remoteness  :  whereas,  if  an  estate  tail  is  raised,  by  implica- 
714.  tion,  in  favour  of  the  heir  apparent  or  heir  presumptive,  the 

express  devise  is  then  good  as  a  remainder. 

Thirdly,  supposing  the  devise  to  be  good,  as  of  course  the 
testator  considered  it  to  be;  he,  in  effect,  left  the  property  to 
descend  to  the  heir  at  law  and  his  issue,  so  long  as  there 
should  be  any:  can  it  then  be  right  to  refuse  to  imply  an 
estate  tail  in  his  favour,  when,  virtually,  the  testator  inten- 
ded and  created  one  by  postponing  the  devise  till  an  indefi- 
This  con-       ^^^^  failure  of  issue  of  the  heir? 

struction  not      ^^  is  true,  that,  p  in  the  case  of  Lanesboroiigh  v.  587 

allowed  in  ^ox,  the  House  of  Lords  refused  to  admit  such  an 
Lanesbo-  imphcation.(7?)  But  it  was  admitted  in  the  case  of  Walter 
row^h  V. '  V.  Drew,{r/)  and  also  in  the  case  oi  Daintry  v.  Daintry. 
Fox,  but  ad-  There,  a  testator  gave  his  only  son  an  annuity,  increasing 
mittcd  in  at  different  ages  till  30,  to  be  paid  to  him  till  he  should 
other  cases,  marry ;  and,  in  case  he  should  marry  before  30,  then  he 
Daintri/  v,    devised  to  him  and  the  heirs  of  his  body,  all  his  real  and 

Daintr;/,  0 ___^ 

Durn.  6i, 

East,  307.  (/»)  Sec  Fearne,  447.  (</)  See  Fcarnc,  477. 


II.  17.  vi.]  OF  EXECUTORY  INTERESTS.  [§588,589.        [  303  ] 

personal  estates;  and  if  his  son  should  die  without  leaving 
issue  of  his  body,  then,  over.  The  son  attained  30,  and  did 
not  marry.  It  was  held,  tlial  the  son  took  an  estate  tail  in 
the  real  estates,  and  thtj  ahsohUe  interest  in  the  personaUy; 
Lord  Kenyon,  C.  J.,  observing,  that,  according  to  the  con- 
trary supposition,  if  the  son  had  hved  to  30  withoiU  marry- 
ing, and  then  married  and  had  children,  there  would  be  no 
provision  for  those  who  ought  to  have  been  the  first  objects 
of  the  testator;  but  that  there  was  sufficient  to  raise  a  devise 
of  an  estate  tail  in  the  sou,  even  in  the  event  that  had  hap- 
pened, of  his  not  marrying  before  30. 

588  II.  Where,  however,  a  testator  devises  to  one  if.  Where 
person,  on  an  indelinite  failure   of  issue  of  some  the  person 

other  person  to  whom  no  express  devise  is  made,  and  such  whose  fail- 
other  person  is  not  the  heir  apparent  or  heir  presumptive  of  ure  of  issue 
the  testator;  ' there,  an  estate  will  not  accrue  to  hini  by  im-        [  304  ] 
plication, (r)   "nor   to  his    issue,(.y)   and   consequently   the  is  spoken  of 
devise  on  an  indefinite  fi^^iilure  of  his  issue,  is  a  springing  is  not  the 
interest,    and    void    for    remoteness.      (See  §  117 — 127a,  testator's 

jl^l  )  heir  apparent 

589  An  estate  tail  does  not  arise  in  this  case,  because,  °7  presiimp- 
an  heir  at  law  can  only  be  disinherited  by  express  ^'^^'     ^  j^^ 

devise  or  necessary  implication;  and  nothing  more  than  a    °*^''"°   ^^.^ 
probable,  and  not  a  necessary,  implication  arises  in  favour  „     ^  ' 
of  a  stranger,  from  the  postponement  of  a  devise  till  a  failure  Reasons  for 
of  his  issue,  since  the  testator  7}iai/  have  postponed  the  dc-  ^'^'^  ^°"" 
vise  for  the  purpose  of  allowing  the  heir  at  law  to  inherit  in  ^  '"*^  '^"' 
the  meantime,  and  not  with  the  view  of  benefiting  the  per- 
son whose  failure  of  issue  is  referred  to.     Indeed,  a  case 
may  be  put,  where  such  an  intention  would  be  by  no  means 
improbable;  namely,  where  the  heir  at  law  is  entitled  to  the 
reversion  or  remainder  in  other  property  entailed  on  the 
person  whose  failure  of  issue  is  spoken  of;  in  which  case,  it 
might  be  intended  that  the  heir  at  law  should  enjoy  the'  pro- 
perty which  is  devised  on  failure  of  such  person's  issue,  as 
long  as,  but  no  longer  than,  he  should  be  kept  out  of  the 
entailed  property.     So  that  the  third  of  the  before  mention- 
ed reasons  for  raising  an  estate  tail  by  implication,  where 
the  person  whose  failure  of  issue  is  referred  to  is  the  heir 
apparent  or  heir  presumptive  of  the  testator,  does  not  apply, 
where  such  person  is  a  stranger.     And  though  the  other 
reasons  apply,  yet  they  are  overborne  by  the  rule,  that  an 
heir  at  law  shall  not  be  disinherited  by  any  implication  short 
of  necessary  implication. 

(>•)  1  Jarmnn  on  Wills,  491.  (s)  Sec  Fcarne,449,  450. 


[  305  ]       II.  IS.]  AN  ORIGINAL  VIEW         [§590—592. 


CHAPTER  THE  EIGHTEENTH. 

CASES  OF  A  VESTED  REMAINDEU  AFTER  A  LIFE  ESTATE  BV 
IMPLICATION,  DISTINGUISHED  FROM  CASES  OF  A  SPRINGING 
INTEREST. 

I.  Devise  to  I.  '^  Where  a  testator  devises  to  his  heir  apparent  590 
testator's  or  heir  presumptive,  after  the  death  of  another  to 
hcirapparcnt  whom  no  express  devise  is  made,  such  other  person  will 
or  prcsunip-  take  an  estate  for  hfe  by  impUcation,(«)  ^  unless  the  will 
tive,  after  contains  a  residuary  devise  ;(b)  and  consequently  the  in- 
thc  death  of  terest  of  the  person  who  was  heir  apparent  or  heir  presump- 
another  to  jj^g^  jg  j-^qj.  ^  springing  interest,  but  a  remainder  after  a  life 
whom  no       ggtj^tg_     (See  §  117— 127a,  159.)     <=  The  inference  that  the 

evise  IS        testator  intends  to  give  an  estate  for  life  to  the  other  person, 
made  2ivcs    •    •        •    -i  i  i  i  ? 

the  former  a  ^^  irresistible  ;  as  he  cannot,  without  the  groosest  absurdity, 
remainder      ^^  supposed  to  mean  to  devise  real  estate  to  his  heir,  at  the 
death  of  the  other  person,  and  yet  that  the  heir  should 
have  it  in  the  meantime,  which  would  be  to  render  the  de- 
vise nugatory.(c) 

II.  A  similar  H.  '^  And,  for  the  same  reason,  where  there  is  a  591 
devise  to  the  residuary  devise,  and  the  testator  devises  particular 
residuary  dc-  lands  to  the  residuary  devisee,  to  take  effect,  in  possession,  on 
visee  has  the  the  decease  of  another  person  to  whom  no  express  devise  is 
same  effect,  made,  such  other  person  will  take  an  estate  for  life  by  im- 
See  §  117-  plication  :{d)  and  consequently  the  interest  of  the  other  per- 
127a,  159.     son  will  not  be  a  springing  interest,  but  a  remainder. 

III.  But  a  III.  'But  where  a  testator  devises  to  a  person  592 
similar  de-     who  is  neither  heir  apparent,  nor  heir  presnmp- 

[  306  ]  tive,  nor  residuary  devisee,  after  the  death  of  ^.,  no  estate 
vise  to  one  will  arise  to  J3.  by  implication  ;(e)  becausp  ^it  is  possible  to 
who  is  suppose,  that,  intending  the  land  to  go  to  the  heir  during  the 
neither  heir  life  of  .^.,  he  left  it  for  that  period  undisposed  of.(/)  And 
apparent  or  consequently,  in  this  case,  the  express  devisee  takes  a  spring- 
presumptive,  i,-ig  interest,  and  not  a  remainder, 
nor  residu- 

aiJpfhiTM        ('')  1  '^^''^^"  on  Wills,  465,  466.  (6)  lb.  474. 

s  .rincrin^  ^''^  '^''  '^^^-  ('^^  '^''  ^'^^' 

springing  ^^j  j  Jarman  on  Wills,  465.     As  to  the  doctrine  of  implication 

in  eres  .  j^^  certain  other  cases  of  unfrequent  occurrence,  see  Mr.  Jarman's 

able  observations,  p.  467,  &c. 

(/)  Ih.  466. 


II.  19.J      OF  EXECUTORY  INTERESTS.  [§593—595.       [  307  ] 


CHAPTER  THE  NINETEENTH. 

LIMITATIONS  OF  PERSONAL  ESTATE,  SIMILAR  TO  LIMITATIONS 
WHICH  WOULD  CREATE  AN  ESTATE  TAIL  IN  REAL  ESTATE, 
ACCORDING  TO  THE  TWELFTH,  THIRTEENTH,  AND  SEVEN- 
TEENTH, OF  THE  FOREGOING  ClIAl'TERS. 

593  Chattels,  whether  real   or  personal,  cannot  be  Chattels can- 
enlaiied,  not  being  transmissible  to  the  real  repre-  not  be  cn- 

sentatives,  as  such,  and  not  being  within  the  statute  De  tailed. 

donis,  even  if  they  were  so  transmissible. 
593a  Such  being  the  case,  ""it  is  a  general  rule,  that  General  rule 

Avhcre  the  words  would  raise  an  estate  tail  in  real  re.sultini; 
estate,  they  will   give    the   absolute    property   in   person-  h-om  this, 

ahy."(r/)     And  therefore,  j  Bequests 

593b  I.  ''Where  personal  estate  is  limited  directly  to,    '  „_  /Vj.  „ 

or  by  way  of  executed  trust  for,  a  person  and  the  „^,.,^„  .,„j 
1     •         /•  1  ■     1     1       •  11         1-     •      •  I  11     pcisoii,  ana 

heirs  01  his  body,  in  one  unbroken  limitation,  the  whole  jj^^.  ]^^jj.^  ^^ 

vests  in  such  person  himself.(i)  j,ig  body. 

594  II.  "  Where  personal  estate  is  limited  directly  to,  jj  Li,i-,"[tn. 
or  by  way  of  executed  trust  for,  a  person  for  life,  fj^^g  {^  ^j. 

remainder  to  or  for  the  heirs  of  his  body ;  and  such  limita-  f^r  a  person 
tions  would,  according  to  the  rules  laid  down  in  the  twelfth  for  life,  rc- 
chapter,  on  the  Rule  in  Shelley'' s  Case,  create  an  estate  tail  maindcr  to 
in  the  first  taker  or  ancestor,  if  the  subject  were  real  pro-  the  heirs  of 
perty  ;  the  entire  interest  in  the  whole  vests  in  him,(c)  ''even  his  body, 
thongli  only  the  use,  interest,  dividends,  or  profits,  are  de-        [  SOS  ] 
vised  to  him,  and  the  chattels  themselves  to  the  heirs  of  his  which  would 
body.(f/)  create  an  es- 

595  For,  as  the  estate  cannot  be  entailed,  the  heirs  of  t'l^e  tail  in 
the  body  cannot  take  by  descent.     And  it  was  not  i"<^'^l  P^'o- 

intended  that  they  should  take  by  purchase:  for,  the  word  P^^'fy- 
heirs,  unexplained,  must  be  taken  in  its  technical  sense,  as  a  Grounds  of 
word  of  limitation ;  and,  if  the  property  were  allowed  to  go  the  rule. 
to  the  first  person  answering  the  description  of  heir,  the 

(a)  Lord  Eldon,  in  ChandJcss  v.  Price,  3  Ves.  99,  as  cited,  Fcarnc,  466,  (1i). 

\b)  Scale  V.  Scale,  1  P.  W.  290,  as  stated,  Fcarnc,  463. 

(c)  BroirncJar  v.  Bagot,  19  Ves.  574.  Kinch  v.  Ward,  2  Sim.  cV  Stu.  409, 
stated  §  474.  Do2/glas  v.  Coiip:rcvc,  1  I^cav.  riO,  slated  §  477.  Uod  v.  Dicken- 
son, 8  Vin.  451,  pi.  2") ;  and  Ihiltcrficld  v.  Butter  field,  1  \^cs.  133,  as  stated, 
Fcarnc,  4G4.     Webb  v.  Webb,  1  P.  'W.  132,  as  stated,  Fcarne,  493. 

{d)  Earl  of  Chatham  v.  Daw  Tothill,  6  Bro.  Pari.  Ca.  450,  as  stated,  Fcarnc, 
404 — 5.  Thccbridgc  v.  Kdbnrne,  2  Ves.  Sen.  233 ;  and  Garth  v.  Baldwin,  2 
Ves.  Sen.  046;  as  stated,  Fearnc,  491—2. 


[   308   ]         11.  19. J 


AN  ORIGINAL  VIEW 


[§595. 


Sec  §  429- 
44S. 


See  §  428. 


Elton  V. 
Eason,  19 
Yes.  73. 


[   309  ] 


Britton  v. 
Twining,  3 
Meriv.  17G. 


whole  interest  must  vest  in  him;  and  since  it  must  vest 
cither  in  such  person  or  in  the  ancestor  himself,  it  is  more 
likely,  that  the  primary  or  paramount  intention  of  the  testa- 
tor, imported  by  the  word  heirs,  would  be  clFcctuatcd,  by 
allowing  the  wliole  interest  to  vest  in  the  ancestor;  inas- 
much as  there  would  then  be  a  greater  probability,  that  all 
who  should  from  time  to  time  answer  the  description  of  heirs 
of  his  body,  would  enjoy  the  property,  than  if  the  whole 
interest  vested  in  the  child  or  grandchild  first  answering  such 
description.  And  besides,  it  is  more  likely  that  the  testator 
would  wish  the  whole  to  vest  in  the  ancestor,  as  he  is  the 
sole  ascertained  attracting  object  and  the  groundwork  of  his 
bounty,  than  in  the  person  first  answering  the  description  of 
heir,  who  must  be  unascertained  by  and  unknown  to  the 
testator,  and  only  an  object  of  his  regard  by  reason  of  his 
connexion  with  the  ancestor. 

A  testatrix  devised  her  residuary  real  and  personal  estate, 
upon  trust  to  apply  the  rents  and  profits  for  her  son,  during 
his  life;  and  afterwards  for  the  heirs  of  his  body,  if  any; 
and,  in  default  of  such  issue,  then  in  trust  for  her  grandson 
&c.  It  was  argued,  that  the  words  "  if  any,"  had  a  peculiar 
force  in  this  case,  the  son  being  a  lunatic.  But  the  Master 
of  the  Rolls  held,  that,  even  considering  this  as  a  mere  dis- 
position of  personalty,  the  son  took  an  absolute  interest  in 
the  personalty,  notwithstanding  the  words  "if  any,"  which 
must  always  be  implied. 

And  where  A.  directed  20,000/.,  which  he  had  in  the 
funds,  to  be  firmly  fixed,  and  there  to  remain,  during  the 
life  of  his  wife,  for  her  to  receive  the  interest;  and,  after  her 
death,  to  be  in  the  same  manner  firmly  fixed  upon  W.  C, 
to  be  so  secured  that  he  may  only  receive  the  interest  during 
his  life  ;  and,  after  his  decease,  to  the  heir  male  of  his  body  ; 
and  so  on  in  succession  to  the  heir  at  law,  male  or  female ; 
with  a  direction,  that  the  principal  should  never  be  broken 
into,  but  only  the  interest  to  be  received  as  aforesaid ;  his 
intent  being,  that  there  should  always  be  the  interest  to  sup- 
port the  name  of  Cobb  as  a  private  gentleman.  Sir  W. 
Grant,  M.  R.,  held,  that  if  this  had  been  a  devise  of  land,  it 
would  have  created  an  estate  tail;  and  therefore  TV.  C. 
took  the  absolute  interest.  The  learned  Judge  observed, 
that  he  did  not  conceive  that  the  testator  had  any  reference 
to  a  future  settlement ;  and  even  if  he  had,  that  would  make 
no  difference  ;  that  there  was  nothing  to  show  that  the  words 
"  heir  male"  were  not  used  in  their  strict  technical  sense  ;  on 
the  contrary,  the  testator  conceived  he  could  make  a  per- 
petual entail  of  the  property,  so  as  to  make  it  pass  from  heir 
to  heir  in  succession,  with  a  restriction  on  the  power  of  dis- 
position. 


II.  19.]        OF  EXECUTORY  INTERESTS.  [§596,  597.        [  309  ] 

59G  111.   IJul,  'where  the  word  heirs  would  ho  roii-  III.  Limita- 

slriied  a  word  of  piirchase,  if  tlie  subject  of  the  tioiis  toorfor 
huiitations  were  real  estate,  according  to  the  rul(!s  laid  down  ^  penson's 
in  tiic  twelfth  chapter,  on  the  Rule  in  S/iP//ei/.s  Case  ;(e)  or  '''<^^  ^"h  re- 
•"whcre  there    are   supenidded    words   of  limitation  to  the  "^■''5'*^'^'' '*^ 
executors  of  the  hcirs;(/)  or  where  there  are  superadded"''.''''"*"^, 
words  of  limitation  which  would  carry  the  fee  in  real  pro-  f"-'"''^  *^.i    .1 
pertv,  followed  by  a  limitation  over  in  default  of  such  issue,  ^     •'     ' 
apparently  mtendcd  as  an  alternative  ;  or  Kiiny  other  words        .   ^^^  -. 
showing  that  the  word  heirs  was  not  used  in  its  technical  p,.p_.^(^/_.,p 
sense  ;(,!,'■)  the  ancestor  only  takes  a  life  interest;  and  the  ^^^j^,^  j^-|  ji^ 
whole  remaining  interest  vests  in  the  issue,  if  there  are  any;  ^.^^^     ^ 
and  if  there  are  no  issue,  the  property  reverts  to  the  personal  pe,.(y.^ 
re|)resentalivcsof  the  testator,  or  passes  to  the  ohjecls  of  the 
alternative  limitation. 

A  testator  gave  a  leasehold  messuage  to  L.  P.,  and  to  the  Wilkinson 
heirs  of  his  body  lawfully  begotten,  and  to  their  heirs  and  v.  South,  1 
assigns  for  ever;  but,  in  detault  of  such  issue,  then,  after  his  D.tScE.  555. 
decease,  to  go  to    T.  ff.,  his  heirs  and  assigns  for  ever.     It 
was  held,  that  the  limitation  over  was  not  too  remote,  Lord 
Kenyon,  C.  J.,  intimating  that  it  was  a  limitation  with  a 

double  aspect.  ry   njgpQsi. 

597  IV.  Where   personal   estate    is   devised   or  l^e- jj^^jj^jJ^^^.^^jj. 

queathed  either  directly  to  or  by  way  of  executed  ^^^  person 
trust  (See  §  489)  for  a  person  and  his  issue,  whether  in  one  ^j^j  j^jg  -g. 
unbroken  limitation,  or  in  two  limitations ;  and  such  limita-  g^^Q^  which 
tion  or  limitations  would,  according  to  the  first  rule  in  the  would  create 
thirteenth  chapter,  create  an  estate  tail  in  the  ancestor,  if  the  an  estnte  tail 
subject  were  real  property  ;  ''the  entire  interest  in  the  whole  in  real  pro- 
vests  in  him.(/<)  perty. 

A  testator  gave  all  his  real  and  personal  estate  to  ,1.  and  Bonn  v. 
his  male  issue.     For  want  of  male  issue  after  him,  to  B.  and  Penny,  1 
his  male  issue.     Sir  W.  Grant,  M.  R.,  held  that  ti.  took  the  xMeriv.  20. 
absolute  interest  in  the  personal  estate. 

So  where  a  testator  gave  500/.  slock  to  ,S'.  7\,  to  receive  ,|//^,.„pw. 
the  interest,  during  life,  and  then,  to  her  issue  ;  but,  in  case  (jf^j^^ral  v 
of  her  death  without  issue,  the  said  500/.  to  be  divided  be-  ^j.i„y  2 
tween  &c.  T.  S.  died  without  issue.  Lord  Langdale,  M.  Keen,  57. 
R.,  held,  that  she  took  the  absolute  interest  under  the  §^0  also 
first  words;  and  that  the  limitation  over  was  void  for  re-  Lyon  v. 
moteness.  Michell,  1  Mad.  473,  as  stated  §  529. 


(e)  Sec  Peacock  v.  Spooncr,  2  Vera.  43,  195;  and  Dajforne  v.  Goodman,  2 
Vera.  3G2  ;  as  stated,  Feanic,  493  ;  in  wjiioh  cases  the  term  was  not  limited  to 
tlie  prior  talccns  for  lile,  but  I'ur  so  many  years  as  they  slionld  live. 

(  /■)  Hodf^eaon  v.  lius>iri/,  2  Alk.  89,  as  staled,  Fearnc,  -191. 

(^•)  i^ci'Read  v.  .S'/je//,  2  Atk.  612,  as  stated,  Fearne,  47  3,  494. 

(/j)  Uiit  see  KnisrfU  v.  Ellis,  2  Bro.  C.  C.  570;  and    }yarman  v.   Seaman, 
Fin.  Chan.  Rep.  279  ;  as  slated,  Fearne,  490,  (a),  and  495. 
Vol.  II.— 32 


[  310  J        II.  19.]  AN  ORIGINAL  VIEW        [§597a,  598. 

Gihbs  V.  Again  ;  a  testator  gave  what  slionld  be  remaining  of  the 

[  311  ]  residuary  monies,  the  interest  of  which  he  had  given  to  his 
Tuit,  8  Sim.  wife  T.  I).,  during  widowhood,  unto  and  equally  among  all 
132.  tlie  daughters  of  T.  Z).,  and  their  issue,  with  benefit  of  sur- 

vivorship and  accruer.  Sir  L.  Siiadwell,  V.  C,  held,  that 
the  issue  of  a  daughter  who  died  in  the  lifetime  of  T.  D., 
took  nothing;  for,  the  testator  spoke  of  the  residue,  as  if  it 
would  be  uncertain,  until  the  death  or  second  marriage  of 
his  widow,  what  the  residuary  estate  would  consist  of;  and 
therefore  he  meant  those  only  to  take  who  should  be  in 
existence  when  the  property  was  to  be  distributed.  [See 
Howes  V.  Herring,  M'Cleland  &  You.  295,  stated  §  655.] 
Secondly,  that  the  two  surviving  daughters  took  absolutely; 
for,  it  would  be  very  inconvenient  that  they  and  their  issue 
should  take  simultaneously. 
Turner  v.  And  where  a  testator  gave  his  residuary  estate  in  trust  for 

Cope/,  9  his  wife,  for  life;  and  after  her  death,  he  gave  the  same  to 
Sim.  158.  j^is  son  and  daughters,  share  and  share  alike,  and  their 
respective  issue ;  with  benefit  of  survivorship  unto  and  be- 
tween his  said  children,  or  their  issue  respectively.  Sir  L. 
Shadwell,  V.  C,  held,  on  the  authority  of  Pearson  v.  6'/e- 
T^Aen,  that  the  son  and  daughter  took  absolutely;  and  not 
for  life  only,  with  remainder  to  their  issue ;  and  that  the 
survivorship  was  to  take  place  in  the  event  of  there  being 
a  failure  of  issue  of  either  of  the  children  in  the  Ufetime  of 
the  widow. 

V.  Disposi-  V.  But  where  personal  estate  is  devised  or  be-  597a 
tion  in  favour  queathed  either  directly  to,  or  by  way  of  executed 

of  a  person  trust  for,  (See  §  489.)  a  person  and  his  issue,  whether  in  one 
and  his  issue,  unbroken  limitation,  or  in  two  distinct  limitations,  and  such 
which  would  limitation  or  second  of  such  limitations  would,  according  to 
not  create  an  (he  second  rule  in  the  thirteenth  chapter,  give  the  issue  an 
estate  tail  in  estate  tail  by  purchase  ;  'the  ancestor  only  takes  for  life;(2) 
real  pro.  ^^^  j^e  whole  remaining  interest  vests  in  the  issue,  if  there 
perty.  ^j.g  g,-,y ,  jij^d  if  there  are  no  issue,  the  property  reverts  to 

the  personal  representatives  of  the  testator,  or  if  there  is  an 
See  §  128-  alternative  interest,  passes  to  the  objects  of  the  alternative 
136.  hmitation. 

[  312  ]  VI.  Where  personal  estate  is  limited  in  favour  598 

VI.  Execu-    of  a  person  and  his  issue,  by  way  of  executory 

tory  trust  in  trust,  (See  §  489,  491)  the  same  construction  will  be  adopted 

favour  of  a  as  that  which  is  adopted  in  the  corresponding  case  of  real 

person  and  estate,  even  though  there  may  be  a  limitation  over  on  an 

his  issue.  indefinite  failure  of  issue. 

See  §  531-2.      ^  testator  gave  one  third  of  his  residuary  personal  estate 

Stoncr  V.  ^^  ^^^^  niece,  which  ho  desired  might  be  settled  by  his  execu- 

Curu-en  5  ^^^^  ^^^  j^-^  g^- j  j^j^^g  j^r  her  separate  use,  durnig  iier  life, 
Sim.  264. 


(i)  See  Lampleij  v.  Bloiccr,  3  Atk.  398,  as  stated,  Fearne,  473,  495. 


II.  10.]        OF  EXECUTORY  INTERESTS.  [§599,  GOO.        [  312  ] 

but  to  devolve  to  her  issue  at  licr  (]oatli ;  and,  failing  issue, 
then,  to  revert  to  liis  riophew.  This  being  an  executory 
trust,  Sir  L.  Shadwell,  V.  C,  directed  a  settlement  to  be 
made  to  the  niece  for  life,  for  her  separate  use;  and,  after 
her  decease,  in  trust  for  such  of  her  children  as  should  be 
living  at  her  death,  and  for  such  issue  of  children  dying  in 
her  lifetime  as  might  be  living  at  her  deatli ;  the  issue  of 
any  deceased  child  to  take  such  share  only  as  the  deceased 
child  would  have  taken,  if  living;  and,  if  there  should  be 
no  child,  nor  any  issue  of  a  child  of  the  niece  living  at  her 

death,  then  in  trust  for  the  nephew. 
599  VII.  "^  Where  personal  estate   is  limited,  either  VII.  Limila- 

directly  to,  or  by  way  of  executed  trust  for,  (See  §  tionsover  on 
489,491)  a  person  indefinitely,  or  for  life,  with  a  limitation  an  indefinite 
over  on  an  indefinite  failure  of  iiis  issue  ;  the  whole  interest  f^^'l^'^  of 
vests  in  the  ancestor.(/.')  issue. 

In  this  case,  it  is  not  intended  that  the  property  should  go  Grounds  of 
over,  except  on  failure  of  his  issue,  but  that  his  issue  sliould  the  rule, 
be  benefited  by  it ;  and  as  there  is  no  direct  gift  to  the  issue, 
to  enable  them  to  take  by  purchase,  tlie  nearest  way  of 
eflfectuating  the  intention,  is,  to  give  the  entire  interest  to 
the  ancestor,  that  they  may  have  the  benefit  of  the  property, 
derivatively,  through  him  ;  especially  as  the  other  intent  of 
the  testator,  that  the  pro])erty  should  go  over  on   failure  of 
issue,  could  not  have  effect ;  because  the  limitation  over  on 
an  indefinite  failure  of  issue,  except  by  way  of  remainder        [  313  ] 
after  an  estate  tail,  is,  as  we  shall  see  in  a  subsequent  chapter,  See  §  700, 

void  for  remoteness.  714.  714. 

COO  VIII.  But,  where  the  limitation  over  is  on  fail-  VIII.  Limi- 

ure  of  children  only,  or  on  fiiilure  of  issue  within  tations  over 
a  given  time,  (he  ancestor  will  have  a  life  estate,  with  a  on  failure  of 
limitation  over  in  the  nature  of  a  contingent  remainder,  or  children 
with  a  limitation  over  of  a  springing  interest;  or  the  entire  onlvj  or  of 
interest,  with   a   conditional   limitation   over.     (See  §  159, '^^""^  ^^'^'hin 
1 17-127a,  14S-15S.)  a  given  tinne. 

A  testator  bequeathed  the  residue  of  his  personal  estate  Stone  v. 
to  //  />.,  for  his  own  use  and  benefit;  and,  in  case  H.  D.  Maule,  2 
should  die  in  the  testator's  lifetime,  or  afterwards,  without  Sim.  490. 
having  any  child  or  children,  then  over.     //.  D.,  who  was 
an  illegitimate  child,  survived  the  testator,  but  died  without 
having  had  a  child.     It  was  argued  for  the  Crown,  that  the 
words  would  create  an  estate  tail  by  implication  in  real 
estate ;  in  which  case,  //.  D.  would  have  taken  the  per- 
sonal estate  absolutely,  and  the  Crown  would  have  been 
entitled  to  it,  as  he  died  without  issue.     But  the  Vice-Chan- 
cellor,  after  observing  that  the  words  were  not  synonymous 

(A-)  See  Fearne,  466,  note  (h),  and  490,  note  (a) ;    and  Burford  v.  Lee, 
2  Frccm.  210,  as  stated,  Fcarnc,  4'=<0. 


[  313  J        II.  20.]  AN  ORIGINAL  VIEW  [§601. 

with  the  expression  "  without  issne/'  lield  that  the  gift  over 
took  etlect, 
H  rail  showy.      And  where  a  testator  devised  leaseholds  in  trust  for  his 
Ski/beck,  2    daughter,  for  life  ;  remainder  to  her  two  eldest  sons,  for  and 
Bing.  New     during  the  terms  of  their  natural  lives,  as  tenants  in  com- 
Cas.  182.      mon.     And,  in  case  his  daughter  should  not  have  a  son  or 
sons  to  attain  21,  and  of  such  sons  dying  without  lawful 
issue,  then,  to  all  and  every  the  daughters  of  his  daughter 
&c.     It  was  held  that  the  sons  took  only  for  life,  with  limi- 
tations  over,   and   not  a   quasi   estate  tail  ;  Tindal,  C.  J., 
observing,  that  these  words  did  not  import  a  giving  over 
of  the  leasehold  upon  a  general  failure  of  issue  of  the  two 
sons,  which  would  be  an  estate  tail,  but  a  dying  without 
issue  under  21. 


[  ^^^  3  CHAPTER  THE  TWENTIETH. 

LIMITATIONS  OP  PERSONAL  ESTATE  TO  OR  IN  TRUST  FOR 
THE  PERSONS  WHO  SHALL  PROM  TIME  TO  TIME  BE  EN- 
TITLED   TO    REAL    ESTATES    ENTAILED. 

I  Where       ^-   Where   cloattels   real   or  personal   are   either  fiOl 

such  limita-   directly  given  to,  or  directed  to  be  held  or  enjoyed 
tions  are  not  by,  the  person  and  persons  who  shall  from  time  to  time  be 
by  way  of     entitled  to  real  estates  which  are  entailed ;  and  there  is  no 
executory       direction  for,  or  reference  to  the  making  of  a  future  settle- 
trust,  ment  or  conveyance,  for  the  purpose  of  securing  the  use  of 
See  §  489,     such  chattels  to  sucli  person  or  persons ;  the  chattels,  sub- 
491.              ject  to  the  life  interests  of  the  prior  tenants  for  life,  if  any, 
of  the  real  estate,  become  the  absolute  property  of  the  first 
tenant  in  tail,  on  his  attaining  a  vested  interest  in  the  real 
estate,  whether  at  his  birth,  or  ''at  21,(«)  or  at  some  other 
time. 
Fordyce  v.         A  testator  devised  freehold  estate  to  his  brother  and  his 
_Ford,  2  Ves.  wife,  for  their  lives;  remainder  to  ./?.  and  the  heirs  male  of 
536.              his  body;  with  remainders  over;  and  he  directed  that  cer- 
tain leasehold  premises  should  belong  to  the  several  persons, 
in  succession,  who,  by  virtue  of  the  will,  should  for  the  time 
being  be  entitled  to  the  freehold,  so  far  as  the  rules  of  law 
would  admit.     Sir  R.  P.  Arden,  M.  R.,  held,  that  Jl.  took 
the  leasehold  absolutely  ;    it  being  clear  that  the  testator 
meant  an  estate  tail  in  ./?.  as  to  the  freehold,  not  knowing 
he  could  put   it   in  his   own  power;  and   he  meant   the 
same  estate,  with  the  same  succession  to  the  same  line  of 
issue,  in  the  leaseholds,  so  far  as  the  rules  of  law  would 
permit. 

(rt)  Trafford  v.  Trafford,  3  Atk.  Ml. 


II.  20.]      OF  EXECUTORY  INTERESTS.  [§G02— 005.        [  .314  ] 

And  where  a  tcslator  gave  Icasoliold  estates,  in  trust  to  Ware  v. 
pay  the  rents  and  profits  to  the   persons  tor  the  time  being  Polhill,  11 
entitled  to  real  estate  under  Hinitations  tiiereof  in  strict  set-  ^  es.  2'il. 
tlement,  with  power  to  the  trustees,  at  any  time,  with  con-       [  315  ] 
sent  of  the  persons  so  entitled,  or  if  minors,  at  their  own 
discretion,  to  sell  and  invest  the  produce  in  real  estate  to 
the  same  uses.     Lord  Eldon,  C,  held,  that  the  leaseholds 
vested  absolutely  in  the  first  tenant  in  tail  on  his  birth  ;  and 
that  the  power  of  sale  was  void,  as  it  might  travel  through 
minorities  for  two  eentnries. 

602  II.  But  where    such  a  disposition  is   made   of  If.  ^^'Iif're 
chattels,  by  way  of  trust  executory,  that  is,  where  the  disposi- 

there  is  a  direction  for,  or  reference  to  the  making  of,  some  tion  is  by 
future  settlement  or  conveyance,  for  the  purpose  of  finally  '''''^y  f^f  exe- 
and  formally  declaring  the  trusts,  which  do  not  appear  to  ^r^^^'T  ^ ''"^t. 
have  been  so  declared  by  the  instrument  containing  such  di-  'r^':  ^        ' 
rection  or  reference;  m  such  case,  the  chattels  do  not  vest 
absolutely  and  indcfeasibly  in  the  first  tenant  in  tail,  until 
he  attains  the  age  of  21  years. 

603  This  distinction  is  only  in  accordance  with  the  Distinction 
distinction  which  has  been  made,  in  other  cases,  cxfiibitcd  in 
between  trusts  executed  and  trusts  executory.  these  two 

604  In  the  case  of  a  trust  executed,  the  trust  being  '""J^*^'^  is  in 
finally  declared  by  the  instrument  creating  it,  a  accordance 

Court  of  Equity  can  give  the  words  no  other  force  than  that  "'if''.tJ'e  ^li^- 
which  they  literally  possess,  in  themselves, consistently  with  ^'"^'j'".'^ 
the  rules  of  law :  for,  in  such  case,  the  Court  is  not  called  "^,    '^  ^" 
upon  to  frame  new  limitations,  in  order  to  carry  out  the  ^         "     ' 
intention;  but  to  act  upon  limitations  or  directions  already  ^^''°""";'^  '^' 
framed  and  subsisting.  '"^'  ^'^''"^^^ 

But,  in  the  case  of  trusts  executory,  all  that  is  done  by  ''^"" 
the  testator  or  settlor,  is,  to  intimate  the  mode  in  which  he 
wishes  his  property  to  be  settled  by  some  future  settlement 
or  conveyance  :  and  a  Court  of  Equity  is  at  liberty,  and, 
indeed,  feels  bound,  to  settle  or  convey  it  in  that  mode 

which  will  best  accord  with  the  spirit  of  the  party's 
G05  directions.     In  the  case  of  a  trust  executory,  there 

is  not  that  degree  of  presumption  that  the  party 
has  accurately  expressed  what  he  intended,  which  there  is 
in  the  case  of  a  trust  executed.  And  therefore,  whether  a 
Court  of  Equity  would  have  been  justified  in  giving  greater 
effect  to  the  supposed  intention  of  the  party,  in  the  case  of 
a  trust  executed,  or  not;  there  can,  at  all  events,  be  no  [  .31G  ] 
doubt,  that  it  is  justified  in  carrying  out  his  intentions,  in 
the  case  of  a  trust  executory.  And  by  not  giving  an  ab- 
solute interest  in  the  chattels  to  the  tenant  in  tail,  before 
21,  the  Court  renders  such  chattels  unalienable,  in  the 
case  of  an  executory  trust,  for  the  same  length  of  time  as 
the  real  estate,  and  secures  their  transmission  from  one  per- 


[  31G  ]        11.20.]  AN  ORIGINAL  VIEW         [§G06— G13. 

son  entitled  to  the  real  estate,  to  anotlier,  as  long  as  tlic  law 
will  allow. 

If  a  Court  of  Equity  were  not  to  give  effect  to  GOG 

executory  trusts  in  this  way,  it  would  be  an  ano- 
maly of  the  most  arbitrary  kind ;  it  would  be  refusing  to 
make  a  distinction  between  trusts  executed  and  trusts  exe- 
cutory, in  this  respect,  while,  in  others,  a  disitinction  is  uni- 
formly made. 
Executory  For   this   reason,  executory  trusts  ought  to  be  GOT 

trusts  should  construed  in  the  manner  above  mentioned,  whether 
be  construed  (j^gy  g^^e  created  by  marriage  settlement  or  arti- 
accordnig  10  cles,  or  merely  by  will.     But  such  a  construction  608 

the  second     should  be  adopted  more  especially  in  the  case  of 

'_.  |.  marriage  settlements  or  articles  :  for,  there,  the  issue  in 
when  created  I'C'^^^i^^cr  are  all  purchasers,  instead  of  being  volim- 
bv  marriage  teers.  ,         ,      , 

settlement  or       ^^  '^''^^  sometmies  been  thought  that  where  the  G09 

articles.  disposition  is  made,  not  by  a  direct  gift,  but  through 

\  eift  ^^^^  medium  of  a  direction  that  the  chattels  shall  go  to  per- 

ihrou"h  the  ^°"^  sustaining  a  certain  character  with  reference 
medimn  of  a  ^0  the  realty,  the  trust  is  a  trust  executory.     It  is  GIO 

direction  is     true  that  Fearne  uses  the  word  directory,  as  syno- 
not  ncccs-      nymous  with  executory,  but,  in  ''his  'definition  of  a  trust 
.sarily  u  trust  executory,  he  only  includes  those  which  refer  to  the 
executory,      execution  of  a  future  settlement  or  conveyance.  (/>)  Gil 

And  though  an  executory  trust  is  necessarily  di- 
rectory, yet,  a  trust  may  be  directory,  and  at  the  same  time, 
executed,  where  it  is  finally  declared  in  tlie  instru- 
ment creating  it.     And,  it   may  be  asked,  what  612 
substantial  difference  is  there,  upoiwprinciple,  be- 
tween a  trust  which  is,  and  a  trust  which  is  not,  directory 
in  its  terms?     If  a  testator  gives  a  sum  of  money  in  trust, 
and  directs  it  to  be  equally  divided  among  a  given  number 
of  persons;  and  there  is  no  gift  of  the  money  to  those  per- 
[  317  ]        sons,  independently  of  the  direction  to  divide  the  money 
between  them ;  is  not  this  the  same  thing,  so  far  as  the 
present  question  is  concerned,  as  if  there  were  distinct  gifts 
of  the  respective   shares   in   trust  for  the  respective  indi- 
viduals ?     Even  where  chattels  are  bequeathed  without  the 
medium  of  a  trust,  the  legal   right  to  them  vests  in  the 
executors,  as  much  as  it  does  if  the  executors  are 
directed  to  dispose  of  them.     So  that,  upon  prin-           613 
ciple,  as  well  as  upon   the   indirect  authority   of 
Fearne,  in  his  definition  of  trusts  executory,  such  directory 
trusts  as  these,  are  trusts  executed,  and  not  executory,  so  as 
to  call  for  that  kind  of  construction  which  trusts  executory 
in  general  receive. 

{h)  Fearne,  143. 


11.20.]      OF  EXECUTORY  INTERESTS.  [§g14— GIG.        [  317  J 

614  In  some  cases  the  words  "  so  far  as  ihc  rules  of  Tlie  words 
law  will  permit,"  have  been   inserted.     And,  in  "  so  far  as 

one  sense,  '='Mhese,"as  Lord  Ilardwicke  says,  "  are  very  die  rules  of 
material  words;"    namely,  as   prechuhiiG:  any  intendment '^^v,^^^'"  P^r- 
contrary  to  the  rules  of  law:  "for,"  His  Lordship  adds,  "it  "J'^    P'"*^'- 
is  impossible  to  object  that  the  testator  had  any  intention  •'iJ'^J'^j)^"^?^^^ 
contrary  to  the  rules  of  law  ;  for  he  hath  by  these  words  |,"  ^j"jj"y  "q 
delivered    himself    from   any   imputation   of   the  j^^^      ^ 

615  kind. "(c)     lint  they  have  no  force  in  enabling  the        ' 

Court  to  tie  up  the  chattels  for  a  longer  time  than  ^";     ®J'    ° 
..,,  ,1,  1  ri  1  not  enable 

that  for  which  they  could  be  tied  up,  if  these  words  were  ^^^  ^.^^^^^.^  ^^ 

omitted  :  for  they  imply  no  more,  in  this  view,  than  would  ^j^       ^.j^^^^ 
be  implied  without  them;  and  their  meaning  is  capable  of  ^^i^  j-^^^  ^^^ 
being  satisfied  by  supposing  them  merely  indicative  that  the  ion frer  time, 
testator  was  aware  of  the  different  natures  of  real  and  per- 
sonal estate. (f/) 

616  Having  said  what  appears  to  the  author  to  be  Cases, 
the  true  doctrine  upon  the  subject  of  this  distinc- 
tion between  trusts  executed  and  trusts  executory,  he  now 
proceeds  to  draw  the  reader's  attention  to  the  cases  relating 

to  it. 

Henry,  duke  of  Newcastle,  covenanted,  on  the  marriage  The  Duke  of 
of  the  Earl  of  Lincoln,  to  settle  leasehold  estates,  in  trust  jyewcustlex. 
for  such  persons,  and  such  or  the  like  estates,  &c.,  as  far  as        [  318  ] 
the  law  would  allow,  as  declared   concerning  real   estate  The  Conn- 
thereinbefore  limited  to  the  earl  of  Lincoln,  for  life;    re- tess  of  Lin- 
mainder  to  his  first  and  other  sons  in  tail  male;  remainder  coin,  3  Ves. 
to  Lord  Thomas  Pelham  Clinton,  second  son  of  the  Duke,  387. 
for  life  ;  remainder  to  his  first  and  other  sons  in  tail  male  ; 
with  divers  remainders  over.     The  Earl  of  Lincoln  died, 
leaving  issue  a  son,  Henry  Pelham  Clinton,  who  died  soon 
after  his  birth,  and  a  daughter,  Catherine  Pelham  Clinton. 
Henry,  Duke  of  Newcastle,  died,  and  was  succeeded  by  his 
only  surviving  son,  Lord  Thomas  Clinton,  who  died  :  upon 
which  his  eldest  son,  Henry,  became  Duke  of  Newcastle. 
It  was  insisted,  that,  upon  the  death  of  the  Earl  of  Lincoln, 
his  son,  Henry  Pelham  Clinton,  became  entitled  to  the  lease- 
holds ;  and  that,  upon  his  death,  the  Countess   Dowager  of 
Lincoln  became  entitled  thereto,  as  his  personal  representa- 
tive.    But  Lord  Loughborough,  C,  held,  that,  in  cases  of 
marriage  articles,  where  leasehold  property  is  to  be  the  sub- 
ject of  a  settlement  of  freehold  estate,  and  the  limitations  of 
the  freehold  go  to  all  the  sons  in  succession;  the  settlement 
to  be  made  of  the  leaseholds,  is  to  be  analogous  to  that  of 
the  freehold;  (3  Ves.  397)  [i.  e.  analogous,  not  in  terms. 


(r)  fiowir  V.  Grosvcnory  5  Mud.  347. 

{(I)  Sec  J'aui^han  v.  Burslcm,  3  Bio.  C.  C.  by  Belt.  lUG  ;  and  Lord  Rcdes- 
dalc's  note,  S.  C,  10-1. 


[  318  ]        II.  20.]  Ax\  ORIGINAL  VIEW         [§617—620. 

but  in  ellect;]  and  that  no  person  sliould  be  entitled  lo  the 
absolnte  property,  nnlcss  lie  shall  attain  21,  or  die  under 
that  oge,  leaving  issne  male.     {lb.  39S.)     His  Lordship  ob- 
served, that,  admitting  that  if  the  subject  of  the  articles  were 
freehold,  and  the  articles  were  so  drawn  as  to  give  an  estate 
to  the  heirs  of  the  body  of  the  father,  it  would  be  impossi- 
ble that  he  should  be  tenant  in  tail,  but  he  must  be  reduced 
to  an  estate  for  life  ;  in  parity  of  reasoning,  it  was  impossi- 
ble, in  this  case,  to  give  a  vested  interest  to  a  son  upon  his 
birth.     {lb.  398.)     The  decree  directed  the  leaseholds  to  be 
settled  in  trust  for  Henry,  Duke  of  Newcastle,  and  his  exec- 
utors, administrators,  and  assigns  ;  but  if  he  should  die  under 
21,  without  leaving  issne   male  living  at  the  time  of  his 
death,   then,   in    trust    for   his    brother,   Thomas   Pelham 
The  Conn-    Clinton,  in  like  manner  ;  with  similar  limitations  over.    The 
te.<is  of  Lin-   case  was  carried   by  appeal  to   the   House   of  Lords,  wlio 
cofn  V.  The    alHrmed  the  decree,  with  the  exception  of  leaving   out  the 
[  319  ]        limitations  subsecpient  to  the  word  "assigns,"  in  consequence 
Jjuke  of        of  the  Dnke  having  attained  his  majority,  whereby  such 
Newcastle,    limitations  became  unnecessary. 

12  Yes.  218,      Great  dilference  of  opinion  existed,  in  terms  at  617 

Difference  of  least,  in  regard  to  this  case,  between  Lord  Lough- 
opinion  borough,  who  made  the  above  decree,  and  Lord  Ellcnbo- 

among  the     rough,  C.  J.,  Lord  Eldon,  and  Lord  Erskinc,  C,  wlio  pre- 
.  iidges  in       sided  when  it  came  before  the  House  of  Lords, 
that  case.  When  the  cause  was  heard,  and  previously  to  618 

fT^'^H^^'*^"^  delivering  judgment.   Lord  Loughborough  is  re- 
T        ]]  ported  to  have  expressed  himself  as   follows:   "I  lay  no 

^"(fh*  °'       gr^at  stress  upon  the  words,  'as  far  as  the  law  will  admit;' 
^""S  •  ]jlU  I  put  it  to  you,  whether,  in  the  nature  of  things,  there  is 

not  a  radical  and  essential  difference  between  marriage  set- 
tlements and  wills.  The  parties  contract  upon  a  settlement 
for  all  the  remainders.  They  are  not  voluntary,  but  are 
within  the  consideration.  The  issue  then,  are  all  pur- 
chasers." (3  Ves.  394.) 
Observations      On  the  other  hand.  Lord  Eldon  said,  that  there  619 

of  Lord  was  no  difference  in  the  execution  of  an  executory 

Eldon  in  the  trust  created  by  a  will,  and  of  a  covenant  in  marriage  arti- 
sarnc  case,  clcs ;  and  that  such  a  distinction  would  shake  to  their  foun- 
dation the  rules  of  equity.  (12  Ves.  Jun.  227.)  He  ad- 
mitted, however,  that  there  is  a  distinction,  if  the  will  makes 
a  direct  gift,  and  the  articles  contain  a  covenant  to  be  exe- 
cuted, {lb.  230.) 
and  in  Jcr-        And  in  Jervnise  v.   The  Duke  of  Norihrimbcr-  620 

voiscw  The  land,  1  Jac.  &  Walk.  574,  Lord  Eldon  said,  if  it 
J)ukc  of         was  supposed,  that  he  said  there  was  no  difference  between 
jSorUuim-       marriage  articles  and  trusts  executed,  he  never  meant  to  say 
berland.         so.     And  he  further  observed,  that,  in  marriage  articles,  all 
the   considerations   thai  belong  peculiarly    to  them  afford 


II.  20.]       OF  EXECUTORY  INTERESTS.  [§C21— G23.        [  31.9  J 

primcl  fdcic  evidence  of  intent  which  does  not  belong  to 

executory  trusts  under  wills.     IJut  tliat  he  took  it,  according 

to  all  the  decisions,  allowing  for  that,  an  executory  trust  in 

a  will  is  to  be  executed  in  the  same  way, 

621  Now,  with  regard  to  this  difference  in  opinion,  Mt-aning  of 
real  or  apparent,  it  may  be  observed  that  Lord  the  cx[.rr>s. 

Loughborough's  meaning  might  be,  and  probably  was,  not  sions  used 
that  a  dillerent  construction,  if  the  thing  were  res  integra,  '^Y  Lord 
ought,  on  principle,  to  be  adopted  in  a  covenant  to  settle  in  Loughbo- 
a  marriage  settlement,  from  that  which  would  be  proper  in  ^o^S"- 
an  executory  trust  in  a  will;  but  that,  even  admitting  that        [  320  ] 
similar  words  to  those  in  the  principal  case,  had  been  con- 
strued, in  tlie  case  of  a  will,  to  confer  an  indefeasible  vested 
interest  on  the  first  tenant  in  tail,  on  his  birth;  yet  that  a 
Judge,  wlio  dill  not  approve  of  that  construction,  was  not 
bound  to  adopt   it  in  the  case   of  a  marriage  settlement, 
where,  besides  the  mere  argument  of  intention,  there  was 
the  additional  ground,  that  the  issue  in  remainder  were  all 
purchasers;  whereas  the  issue  in  the  case  of  a  will  are  all 
volunteers.     Lord  Loughborough  did  not  say,  or  intimate, 
either  that  he  approved  or  disapproved  of  such  a  construc- 
tion, in  the  case  of  a  will;  or  that  such  a  construction  had 
ever  been  made,  in  the  case  of  an   executory  trust ;  but 
merely  showed,  that,  whether  such  a  construction  had  been 
made,  or  not,  in  Foley  v.  Burnell,  1  Bro.  C.  C.  274,  and 
Vaughan  v.  Burshm,  3  Bro.  C.  C.  101,  which  were  pressed 
upon   him ;  still,  a  diiferent  construction  might  fairly  be 
adopted  in  the  principal  case,  it  being  a  case  of  a  marriage 
settlement,  and  not  of  a  will. 

622  Wliatever  was  Lord  Loughborough's  meaning, 
however,  surely  it  would  only  be  right  that  a  dif- 
ferent construction  should  be  made  in  the  case  of  mar- 
riage articles,  if  it  were  true  that  such  a  construction  as 
that  above-mentioned  had  been   adopted  in   the  case   of 

wills. 

623  But,  supposing  for  a  moment,  (as  will  appear  An  cxccu- 
hereafter,)   that  no  such  construction  has  in  fact  tory  trust  by 

been  made,  in  the  case  of  an  executory  trust  created  by  uill  ought 
icill;  and  that  the  matter  is  res  integra;  it  is  humbly  sub-  not  to  be 
mitted  that  such  a  construction  ought  never  to  be  adopted,  construed  so 
even  in  the  case  of  a  will.     For,  it  is  allowed,  on  all  hands,  ^^  to  confer 
that  a  Court  of  Equity  has  the  liberty  to  mould  the  limita-  ^"  '"^lefca- 
tions,  so  as  to  execute  the  intention  as  far  as  the  law  will  .^^  vested 
permit,  in  the  case  of  an  executory  trust,  where  a  convey-  '"^^'}^f'  ^^ 
ance  is  directed — that  the  Court  is   not   restricted  to  the  |      !""^^  ^j""" 
technical  operation  of  the  very  words  themselves,  as  they  j'-    ,■    j 
stand,  in  the  case  of  a  trust  executory,  as  it  is  in  the  case  of 
a  trust  executed.     /Vnd  yet  the  construction  which  gives  the 
absolute  property  to  the  first  tenant  in  tail  at  his  birth,  only 
Vol.  II. — 33 


[   320   ]         II.  20.] 


AN  ORIGINAL  VIEW 


[§624. 


And  in  fact 
[   321    ] 
no  such  con- 
stniclion  of 
an  executory 
trust  has 
been  adopt- 
ed. 

Foley  V. 
Burnell,  1 
Bro.  C.  C. 
274, 


■\vas  not  an 

executory 

trust. 


Nor  was 
Vavghan  v. 
Bur  stem,  3 
Bro.  C.  C, 
101. 


[   322  ] 
Nor  was 
Carr  v. 
Lord  ErroU, 

14  Ves.  478. 


ties  np  the  property  to  the  extent  to  which  a  trust  executed, 
couched  in  similar  terms,  would  tic  it  up.  (Sec  C(n'r  v. 
Lord  ErroU,  14  \cs.  17S.) 

But,  when  the  cases  are  closely  examined,  the  C24 

fact  seems  to  be  that  no  such  construction  of  an 
executory  trust  has  ever  been  made,  even  in  the  case  of  a 
will.  Lord  Eldon  thought  it  had  in  Foley  v.  Burnell,  and 
Vaughan  v.  Biirslem;  but  he  appears  to  have  fallen  into  a 
misapprehension,  in  regarding  tliose  as  cases  of  executory 
trusts  sj)ecifically  and  properly  so  called,  that  is,  of  execu- 
tory trusts  which  are  opposed  to  trusts  executed,  and  which 
alone  are  the  subject  of  the  above  distinction. 

In  Foley  V.  Burnell,  the  testator  bequeathed  plate  and 
other  personal  chattels,  to  be  held  and  enjoyed  by  the  seve- 
ral persons  who  from  time  to  time  should  be  entitled  to  the 
use  and  possession  of  the  real  estate,  as  and  in  the  nature  of 
heir-looms;  and  Lord  Thurlow,  C,  held,  that  the  chattels 
vested  absolutely  at  his  birth,  in  tlie  first  tenaiit  in  tail,  who 
died  14  days  afterwards;  and  that  his  father,  the  tenant  for 
life,  was  entitled  to  them  as  his  administrator.  The  cause 
was  reheard ;  but  the  decree  was  alFirmed  by  the  Lords 
Commissioners,  Lord  Loughborough,  Mr.  Justice  Ashurst, 
and  Baron  Hotham ;  and  afterwards  by  the  House  of  Lords. 
But,  in  this  case,  there  was  no  direction  that  any  convey- 
ance of  the  chattels  should  be  made;  and  accordingly,  Mr. 
Justice  Ashurst  treats  the  trust  as  a  trust  executed.  "Where 
the  testator  leaves  it  to  the  Court,"  says  the  learned  Judge, 
"  the  Court  will  protect  the  property,  as  far  as  may  be :  here, 
he  has  taken  upon  him  to  be  his  own  conveyancer." 

So,  in  Vaughan  v.  Burslem,  the  testator  directed  tliat 
chattels  should  go,  as  heir-looms,  with  his  real  estate,  and  be 
lield  and  enjoyed  by  the  person  or  persons  for  the  time  being 
entitled  to  his  real  estate,  as  far  as  the  rules  of  law  and  equity 
would  permit ;  and  Lord  Tluu'low  held,  that  the  tenant  for 
life,  as  personal  representative  of  the  first  tenant  in  tail,  who 
died  six  weeks  after  his  birth,  was  entitled  to  the  chattels. 

But  here  again,  there  was  no  allusion  to  any  conveyance; 
and  hence  'Lord  Ellcnborough,  though  he  said  he  could  not 
reconcile  this  decision  with  the  decree  in  the  principal  case, 
yet  treated  the  trust  as  executed,  observing,  that  it  was  the 
case  of  a  testator  executing  his  own  purpose. (e) 

And  Sir  W.  Grant,  M.  R.,  must  have  considered  it  in  the 
same  light,  from  what  he  says  of  the  case  of  Carr  v.  Lord 
ErroU,  14  Ves.  478.  In  that  case,  the  testator  directed  that 
all  his  plate  &c,,  at  his  mansion  house,  should  remain  there, 
as  heir-looms;  and  devised  the  same  to  trustees,  upon  trust, 
to  permit  the  same  to  go  together  with  the  mansion,  to  such 


(e)  12  Ves.  225. 


II.  20.]      OF  EXECUTORY  INTERESTS.  [§G25— C2S.        [  322  ] 

persons  as  should  from  time  to  time  be  entitled  to  it,  for  so 
ions:  '^  time  as  the  rules  of  hiw  and  ccjuity  would  permit. 
Sir  W.  Grant  held  that  the  absolute  interest  vested  in  the 
first  tenant  in  tail,  and,  upon  liis  death  under  age,  passed  to 
his  personal  representative.  And  His  Honour  said,  that  the 
only  diflcrence  between  that  case,  and  Vans^lian  v.  liurslem, 
was,  that  trustees  were  interposed  in  the  former ;  and  that 
there  was  nothing  executory  in  the  trust  interposed  ;  and 
therefore  the  question,  whether  there  was  any  dill'erence 
between  an  executory  trust  by  a  will  and  a  covenant  in 

marriage  articles,  did  not  arise. 
G25  The  fact  is,  that  Lord  Eldon  considered  execu-  Lord  Eldon 

tory  trusts,  as  opposed  to  trusts  executed,  to  com-  supposed 
prebend  trusts  hi  which  tlie  gift  was  made  by  way  of  direc-  that  dircct- 
tion  that  the  property  should  be  enjoyed  by  persons  sustain-  ory  trusts 
ing  a  certain  character.     His  Lordship  says,  of  Foley  v.  "^vere  syno- 
Burncll,  that  the  clause  being  clearly  directory,  it  was  one  nymous  with 
which  a  Court  of  Equity  would  mould  to  the  purposes  of  ^^^^"^oJ'y 
the  testator,  upon  its  general  principles.     But  it  will  have  ^i""sts. 
already  appeared,  that  these  directory  trusts  do  not  belong 
to  those  which  a  Court  of  Equity  will  attempt  to  mould,  so 
as  to  carry  out  the  intention  of  the  party  to  a  more  full  extent 
than  would  be  accomplished  by  the  technical  operation  of 

the  words  themselves. 
G26  Lord  Eldon  objected,  that  the  decree  in  the  prin-  Objection 

cipal  case,  did  not  accomplish  that  which  it  was  ur^ed  by 
designed  to  accomplish;  that,  in  fact,  it  did  not  tie  them  up  Lo°rd  Eldon. 
as  far  as  the  law  would  permit;  for,  the  moment  a  son  came 
to  the  age  of  14,  he  might  (subject  to  the  contingency  of  his 
death  under  the  age  of  21,  not  leaving  issue  male.)  bequeath 
the  leasehold  estate;  and  if  a  son  died  under  21,  leaving 
issue  male,  that  issue  male  would  not  take  the  leasehold 
estate,  as  he  would  the  real  estate,  but  the  leasehold  estate 
Avould  be  part  of  his  general  personal  estate,  which  might        [  323  ] 
go  to  his  next  of  kin,  and  equally  to  the  wife  with  them. 
And  in  Burrdlv.  Crutchley,  15  Ves.  553,  Lord  Eldon,  C, 
said,  the  dilliculty  that  always  occurred  to  him,  was,  what 

was  to  become  of  it  if  the  party  died  under  age, 
62S  leaving  issue.     But,  Lord  Loughborough  gave  an 

answer  to  these  objections,  when  *'he  said,  that  it 
was  much  more  probable  that  a  new-born  child  should  die, 
than  that  a  son  should  have  a  child,  and  live  till  very  near 
the  age  of  21,  and  then  die.  If,  however,  such  an  improb- 
able event  should  happen,  the  intention  to  keep  the  real  per- 
sonal estate  together  would  still  be  in  a  great  measure  effec- 
tuated. (/) 


(/)  3  Yes.  295, 


[  323  ]        II.  20.1  AN  ORIGINAL  VIEW  [§G29— 632. 

Observations      Lord   Eldon   remarked,  that   by   omitting   the  629 

on  some         limitations  snbseqnent  to   the  word  "assigns,"  as 
other  re-        above  mentioned,  a  great  deal  of  difliculty  was  removed: 
marks  of       for  the  decree  [of  the  House  of  Lords]  could  not  serve  as  a 
Lord  Eldon.  gnide  to  conveyancers,  as  to  what  is  to  be  done  under  any 
other  circumstances  than  a  tenant  in  tail  in  possession  attain- 
ing 21.    And  in  I^urre/l  V.  C7n//chlei/,  15  Ves,  553,  His  Lord- 
ship said,  he  did  not  take  the  case  to  have  decided  anything 
with  regard  to  any  case  that  might  possibly  arise,  except 
that  precise  case,  when  the  Duke  had  attained  21. 
Upon  this,  it  is  to  be  observed,  that  the  decree  630 

sufficiently  establishes  this  point — that,  in  the  case 
of  a  covenant  in  a  marriage  settlement,  of  the  kind  in  ques- 
tion, the  chattels  do  not  vest  in  the  tenant  in  tail  absolutely 
on  his  birth.  For,  Henry,  Duke  of  Newcastle,  who  had  at- 
tained 21,  was  not  the  first  tenant  in  tail  under  the  settle- 
ment. Henry  Pelham  Clinton,  son  of  the  Earl  of  Lincoln, 
was  the  first  tenant  in  tail ;  and  yet,  as  he  died  an  infant,  it 
was  decided  by  the  House  of  Lords,  that  the  chattels  did  not 
pass  to  his  personal  representative,  but  belonged  to  Henry, 
Duke  of  Newcastle,  the  second  tenant  in  tail,  though,  as  the 
latter  had  attained  21,  it  became  unnecessary  to  decide 
whether  they  vested  in  a  tenant  in  tail,  at  his  birth,  or  on 
the  death  of  a  preceding  tenant  in  tail,  subject  to  be  devest- 
ed, or  whether  the  vesting  was  suspended  until  21 ;  and  if 
they  vested  at  his  birth,  whether  they  were  subject  to  be 
[  324  ]  devested  simply  in  the  event  of  dying  under  21,  or  in  the 
double  event  of  his  dying  under  21,  without  issue  generally, 
or  issue  male. 
Observations      The  Lord  Chancellor,  Lord  Erskine,  coincided  631 

of  Lord  Er-    in  the  views  of  Jjord  Ellenborough,  in  regard  to 
skine.  the  propriety  of  the  decree  made  by  Lord  Loughborough. 

Lord  Erskine,  after  saying  that  he  found  it  impossible  to 
reconcile  all  the  cases,  observed,  that  a  Court  of  Equity 
should  give  a  construction  to  an  executory  covenant  of  this 
kind,  agreeably  to  what  would  have  been  the  direction  of  a 
conveyancer  consulted  by  the  party.  That  if  he  would  be 
his  own  conveyancer,  and  create  the  estate,  the  Court  had 
no  jurisdiction  to  alter  that  estate;  but,  upon  such  a  cove- 
nant as  this,  the  Court  had  jurisdiction,  under  the  authority  of 
Goiver  v.  Grosvenor;  and  it  was  reasonable  that  the  intention 
should  be  executed  when  the  Court  could  see  it.(^) 
Remarks  It  is  to  be  lamented  that  Lord  Erskine  should  632 

thereon.         have  rested  his  decision  on  the  opinion  of  Lord 

Hardwicke,  in  Goiver  v.  Grosvenor;  a  case  in  which  the 
terms  of  the  will  cannot  be  substantially  distinguished  from 
those  in  Foley  v.  Burnell,  and  Vaughan  v.  Burslem;  a 

[S)  12  Ves.  238. 


II.  20.]        OF  EXECUTORY  INTERESTS.  [§633,  634.        [  324  ] 

case,  tlicreforCjOfa  trust  executed,  and  not  of  a  trust  execu- 
tory; a  case  in  which  nothing  was  decided;  and  a  case  in 
which  the  question  was  ahogether  ditfcrcnt  from  tiie  point 
at  issue  in  The  Countess  of  Lincoln  v.  7'/te  Duke  of  New- 
castle. 

In  Gowcr  v.  Grosvenor,  Sir  Richard  Grosvenor  devised  Gower  v. 
real  estate  to  Thomas  Grosvenor,  for  W^a;  remainder  to  his  Grosvenor, 
first  and  other  sons  in  tail  male ;  remainder  to  Robert  Gros-  5  ]\hid.  347. 
venor,  for  life ;  remainder  to  his  first  and  other  sons  in  tail. 
And  he  declared  his  will  and  mind  to  be,  that  his  library, 
&c.,  should  go  as  heir-looms,  as  far  as  they  could  by  law,  to 
the  iieir  male  of  his  family  successively,  as  his  real  estate 
was  thereby  settled.     Sir  Thomas  Grosvenor  died,  without 
ever  having  any  issue.     Lord  Ilardwicke  came  to  no  deci- 
sion ;  but  he  was  of  opinion,  that  the  chattels  w^ere  given  to 
Sir  Thomas  Grosvenor;  and  afterwards  to  his  son,  if  ho 
should  liave  any,  but  as  he  had  none,  to  Sir  Robert. 
G33  Now,  it  must  be  observed,  that  here  the  ques-        [  325  ] 

lion  was  between  one  tenant  for  life  and  another ;  Observations 
and  consequently  Lord  Hardwicke's  opinion  has  in  reality  thereon, 
no  bearing  upon  the  question  in  The  Duke  of  Newcastle  v. 
IVie  Countess  of  Lincoln,  where  the  question  was  a  ques- 
tion between  one  tenant  in  tail  and  the  representative  of  a 
deceased  tenant  in  tail,  relating  to  the  time  when  tiie  chat- 
tels vested  absolutely  in  the  tenant  in  tail.  True  it  is,  that 
Lord  Hardwicke  said,  that  there  was  only  a  directory  clause 
to  the  executors;  and  that  when  a  man  makes  use  of  words 
of  this  sort,  he  does  not  make  the  limitation  himself,  but  ho 
leaves  it  to  the  law  to  do  it  for  him.  But  His  Lordship  does 
not  say,  that  this  was  an  executory  trust  expressly  referring 
to  a  future  settlement  or  conveyance.  And  all  that  he 
seems  to  have  meant,  is,  that  the  testator  had  not  made  the 
limitation  himself,  in  direct  terms,  but  had  left  it  to  the 
operation  of  law,  to  mould  an  express  limitation  out  of  the 
directions  he  had  given,  according  to  the  legal  import  of 
those  directions,  by  giving  the  same  etiect  to  them,  as  to  ex- 
press limitations  of  the  same  legal  import.  In  other  words, 
the  learned  Judge  seems  to  have  meant  that  which  he  had 
just  before  observed,  namely,  that  there  were  no  express 
words  of  devise;  and  that  it  would  be  a  very  hard  construc- 
tion to  call  this  an  express  gift  or  legacy  to  the  party,  on 
purpose  to  defeat  the  intention  of  the  testator,  and  though 
Sir  Thomas  enjoyed  them  for  his  life,  yet  the  intcniion 
of  the  testator  was,  to  have  them  go  in  succession.     {lb. 

349.) 
C34  Observations  might  be  made  upon  other  parts  of  Concluding 

Lord  Eldon's  speech ;  but  it  does  not  seem  neces-  ob.servations 
sary  to  do  so  for  the  present  purpose.  From  what  has  been  on  the  cases 
said  it  will  probably  be  sullicicnlly  apparent,  that,  nolwith-  above  no- 


[  325  ]        II.  21.  i.]  AN  ORIGINAL  VIEW  [^G35— G38. 

standing  the  objections  of  Lord  Eldon,and  the  impossibiUty, 
in  the  opinion  of  I^ord  Ellunborough  and  Lord  Erskine,  of 
reconcihng  all  the  cases;  yet  it  is  clear,  upon  the  authority 
of  Mr.  Justice  Ashmt,  Lord  Ellenborough,  and  Sir  William 
Grant,  that  the  cases  of  Foley  v,  BurnelJ,  and  Vaugluin 
V.  Burslcm,  are  cases  of  trusts  executed;  and  that, 
upon  the  autiiority  of  Lord  J^oughborough,  Lord  635 

Ellenborough,  and  Lord  Erskine,  as  well  as  upon 
principle,  an  executory  trust  of  the  kind  in  question,  espccial- 
[  32G  ]        ly  when  created  by  marriage  settlement  or  articles,  ought  not 
to  be  construed  so  as  to  vest  the  chattels  real  or  personal  in 
the  first  tenant  in  tail  of  the  real  estate,  in  an  ab- 
solute and  indefeasible  manner,  at  his  birth.     And  636 
assuming,  upon  the  authority  of  Mr.  Justice  Ash- 
urst.   Lord    Ellenborough,   and  Sir  W.  Grant,   and    upon 
principle,   that   Foley  v.   Burncll,  Vaughan  v.    Burslem, 
Carr  v.  Lord  Erroll,  and  Gower  v.  Grosvenor,  were  cases 
of  trusts  executed,  while  the  case  of  The  Duke  of  Newcastle 
V.  IVie   Countess  of  Lincoln,  was  a  case  of  an  executory 
trust,  it  would  seem  necessarily  to  follow,  that  the 
latter  case  does  not  at  all  interfere  with  the  former.           637 
If  the  former  cases  are  considered  as  trusts  execu- 
ted, according  to  the  opinion  of  ]\Ir,  Justice  Ashurst,  Lord 
Ellenborough,  and  Sir  W.  Grant,  all  the  cases  are  in  har- 
mony, and  the  whole  doctrine  is  clear  and  consistent.     But, 
if  these  cases  are  considered  as  trusts  executory,  contrary  to 
the  opinions  of  those  learned  Judges,  then,  the  cases  are 
totally  irreconcileable,  and  the  subject  of  the  present  chap- 
ter, and  in  fact  the  whole  subject  of  executory  trusts,  is 
involved  in  the  greatest  uncertainly  and  confusion. 


[  327  ]  CHAPTER  THE  TWENTY-FIRST. 

words  apparently  amounting  to  a  mere  alternative 
limitation,  but  in  reality  constituting  a  kemain- 
der;  and  vice  versa. 


SECTION   THE    FIRST. 

Jl  General  Rule  Suggested. 

A  SUBSEQUENT  limitation,  in  doubtful  cases,  ought  638 

See  §  159,     to  be  construed  as  a  remainder  or  quasi  remainder, 
168.168b,     rather  than  as  an  alternative  limitation. 
128,  161. 


II.  21.1.]  OF  EXECUTORY  INTERESTS.  [§G39— G44.        [  327  ] 

G39  A  remainder  or  quasi  remainder,  as  will  appear 

in  a  subsequent  chapter,  is  ordinarily  capable  of 
operating  as  an  alternative  limitation,  in  case  of  the  non-  See  §  66'J. 
vesting  of  the  i)rior  interest :  whereas  an  alternative  limitation 
can  never  operate  as  a  remainder  or  (juasi  remainder;  and  See  §  130. 
yet,  it  may  be  clear  that  the  testator  did  not  intend  that  the 
subsecpient  limitation,  which  is  capable  of  taking  ellect  as  a 
remainder  or  quasi  remainder,  should  entirely  fail,  merely 
because  the  prior  limitation  had  once  vested,  thougli  merely 
for  a  moment. 

640  On  tjie  contrary,  in  all  cases  where  the  words 
do  not  clearly  constitute  a  mere  alternative  limita- 
tion;  and  there  is  no  indication,  in  any  other  part,  that  they 
were  intended  to  create  a  mere  alternative  limitation  ;  and 

where  the  prior  limitation  does  not  carry  the  fee  in  real  pro-  See  §  159, 
party,  or  absolute  interest  in  personal  property,  and  conse-  165. 
quently  the  subsequent  limitation  can  operate  as  a  remainder 
or  «7fm5i  remainder ;  there,  it  would  appear  clear  that  tlie 
testator  iiUended  that  such  subsequent  limitation  should  be 
allowed  to  operate  as  a  remainder  or  quasi  remainder, 
when  it  could  not  operate  as  an  alternative,  in  the  events 
that  happened. 

641  For,  first,  where  such  subsequent  limitation  is 
followed  by  a  still  more  remote  limitation,  it  cau        r  303  ] 

hardly  be  supposed,  that  such  more  remote  limitation,  was 
intended  to  exclude  the  less  remote  limitation,  in  one  event, 
when,  in  another  event,  it  would  liave  had  to  await  the  ex- 
piration of  the  less  remote  limitation:  those  who  were  the 
prior  objects  of  the  testator's  bounty,  in  tlie  one  event,  would 
surely  be  the  prior  objects  in  the  other  event,  when  that 
event  could  have  no  connexion  with  or  influence  upon  the 
testator's  preference  of  the  objects  of  the  less  remote  limita- 
tion to  the  objects  of  the  more  remote  limitation. 
6  12  And,  secondly,  where  such  subsequent  limitation 

is  not  followed  by  any  other  ulterior  limitation,  and 
consequently  it  is  then  a  question  between  the  person  claim- 
ing under  it,  and  the  heir  at  law,  or  the  person  or  persons 
entitled  to  the  undisposed  of  personal  estate,  the  better  opin- 
ion would  seem  to  be,  that,  even  in  this  case  the  subsequent 
limitation  should  be  allowed  to  operate  as  aremain- 
643  der  or  quasi  remainder.     It  is  true  that  the  heir 

can  only  be  disinherited  by  express  words  or  neces- 
sary implication.  13ut  it  was  said  by  the  Lord  Chief  Baron  ,  y  » 
in  Toldervy  v.  Colt,  and,  with  the  above  qualification,  truly  p  n  (j".,\ 
said,  that  ''  the  doctrine  has  long  been  exploded  that  the 
heir  at  law  has  any  particular  privilege  or  favour  from  the 
Court."  "What  he  has  (added  Mr.  Baron  Alderson)  is  a 
dear  pri/7u2  facie  title,  which  you  may  show  to 
Gil  have  been  taken  away."     In  the  case  supposed,     Sec  §  63S. 


[  328  ]        II.  21.  ii.]  AN  ORIGINAL  VIEW        [§645—647. 

there  are  express  words :  but  then  those  words  are  am- 
biguous, and  the  Cou.-t^must  lean  one  way  or  the  other. 
Must  it  lean  in  favour  of  the  heir,  who  does  not  seem  to 
have  been  an  object  of  the  testator's  regard,  and  against  the 
person  who,  in  one  event  at  least,  was  clearly  intended  to 
take,  and  who  would  seem,  judging  a  priori,  to  be  equally 
an  object  of  the  testator's  bounty,  in  the  other  event?  The 
observation  of  the  Lord  Chief  Baron,  approved  as  it  evident- 
ly was  by  the  other  learned  Judge,  would  seem  clearly  to 
negative  this ;  and  numerous  cases  in  which  wills  have  been 
so  construed,  as  to  disinherit,  prove  the  truth  of  that  obser- 
vation. 

No  rule  such  as  that  above  suggested  seems  to  645 

have  been  laid  down  by  authority;  but  there  have 
See  §  GG5.     been  cases  in  which  the  principle  iias  been  virtually  acted  on. 

[  329  ]  SECTION  THE  SECOND. 

Devise  to  a  Certain  Rules  of  a  more  Specific  Character. 

person,  and         ,,,  i      .   ,     •     i      •      i  ^  i  .  ^  .^ 

to  his  issue        Where  real  estate  is  devised  to  a  person,  and  to  646 

or  his  sons '  ^'^  issue,  or  his  sons,  daughters,  or  children,  with 
daughters  or  ^  limitation  over  on  his  death  without  issue,  or  without 
children  leaving  issue,  or  for  want,  or  in  default,  or  on  failure  of 
Avith  a  limi-  issue,  or  of  such  issue,  or  of  sons,  daughters  or  children ; 
tation  over  and  it  is  desired  to  ascertain  whether  such  limitation  over  is 
on  his  death  a  remainder,  or  an  alternative  limitation  :  it  is  necessary,  in 
without  the  first  place,  to  determine  what  estate  the  ancestor  or  his 

issue,  &c.      issue  take.     And, 

I.  Where  tlie      I.  If,  under  the  rules  in  the  thirteenth  and  seven-  647 

ancestor  or  teenth  chapters,  or  otherwise,  the  ancestor  or  his 
his  issue  issue  take  an  estate  tail,  or  the  issue  take  a  life  estate  in  re- 
take an  es-  mainder  ;  and  such  estate  is  a  vested  and  absolutely  limited 
tate  tail,  or  estate;  the  limitation  over,  as  regards  such  estate,  is  a  re- 
the  issue  mainder,  and  not  an  alternative  limitation  :  because  an  alter- 
take  a  life  native  limitation  is  inoperative  and  bad  in  its  very  creation, 
estate  in  re-  ^^Iq^s  j^e  interest  which  it  is  intended  to  confer,  is  a  substi- 
rnaindcr, and  jj^^jg  for  a  contingent  or  an  hypothetically  limited  interest; 
such  estate  ,^^^  ^^8,  130)  and  the  construction  ought  to  be  such,  w/ 
IS  vested  and  ^  ■         i     .  .  ° 

'\\  rltel        res  magis  valeaf,  quam  pereat. 

iimited  ^  testator  devised  an  estate  to  ./?.,  for  life ;  remainder  to 

*  trustees  to  preserve,  &c.;  remainder  to  all  the  children  of ./?., 

A-ir^  r'      ^^  tenants  in  common,  and  not  as  joint  tenants ;  and,  for 

S'^  *  3"'8        want  of  such  issue,  to  B.,  for  life;  remainder  to  trustees  to 

preserve,  &.C.;  remainder  to  all  the  children  of  i?.,  as  tenants 

in  common,  and  not  as  joint  tenants;  and,  for  want  of  such 

issue,  to  C.  in  fee,     ,/jI.  had  children  living  at  the  date  of  the 

will.     The  Master  reported,  that  all  the  limitations  in  the 

will,  subsequent  to  the  devise  to  the  children  of  »'?.,  failed, 


II.  21.  ii.]    OF  E)w^^*^*'^''^^;^8;f  RESTS.  [§G4S,  G19.        [  329  ] 

,    .  1    .    .  1   the   prior  limitation  , 

as  bein?  only  to  takdlS;-  '       >-:pn,iPii»  i^^cver  was  any  such 
child.    Ihit,  Sir  L.  Slia(l\vt"ll,T.^J^V^f^  the  children 

of  Jl.  took  estates  for  life,  as  tcnai'iuriii  common,  with  cross 
remainders  between  them,  for  life  [notwithstanding  the 
words  "and  not  as  joint  tenants"];  remainder  to  B.,{ov 
life;  remainder  to  the  children  of /?.,  as  tenants  in  common,  [  330  ] 
for  life ;  with  cross  remainders  between  them,  for  life ;  re- 
mainder to  C.  in  fee. 

The  following  case  also  may  perhaps  be  fairly  regarded  Doed.  Jear- 
as  an  illustration  of  the  same  principle.     A  testator  devised  ra<l\.  Ban- 
thus: — "to  *S'.  M.  and   her  heirs,  if  she  has  any  child;  \inister,l 
not,  after  the  decease  of  she  and  her  husband,  then  I  give  it  ^^^^^-  ^  ^^  • 
F.  M.  and  her  heirs."     S.  M.  had  a.  child,  who  was  living  ^^^• 
at  the  date  of  the  will,  but  died  four  days  afterwards,  in  the 
testator's  lifetime.     It  was  held,  that  S.  M.  took  an  estate 
tail ;  "  heirs"  being  explained  by  the  word  "  child"  to  mean 
"heirs  of  the  body;"    and  that,  upon  her  death  without 

heirs  of  her  body,  the  property  passed  to  F.  M. 
G  IS  II.  And  even  if  the  estate  for  life  or  in  tail  is  II.  Where 

contingent,  as  where  the  devisees  are  unborn ;  or  such  estate 
if  it  is  hypothetically  limited;  unless  there  is  some  particu-  is  contingent 
lar  indication  of  a  contrary  intent,  the  limitation  over,  it  is  o''  hypo- 
conceived,  is  a  remainder,  and  not  an  alternative  limitation,  thetically  li- 
upon  the  principles  involved  in  the  first  general  rule  above  "^i'^^- 
suggested,  and  also  upon  the  principle,  that  "  an  estate  tail," 
as  Lord  Ilardwicke  observed  in  Brownswordv.  Edwards^ 
"  is  capable  of  a  remainder,  and  it  is  natural  to  expect  a  re- 
mainder after  it."(a) 
649  III.  But,  ^if  an  estate  in  fee,  simple  or  qualified,  IIT.  Where 

is  taken  by  the  ancestor  or  the  issue,  the  limitation  such  estate 
over,  as  regards  such  estate,  is  an  alternative  limitation ;  is  in  fee. 
because  there  cannot  be  a  remainder  after  a  fee  simple((^), 
or  qualified.  See  §  165. 

(a)  2  Ves.  Sen-  249.  And  see  Ives  v.  Legge,  3  Durn,  &  East,  488,  in  note, 
as  stated,  Fcarne,  276,  277.  But  sec  contra,  Keene  v.  Pinnocic,  cited  3  Durn. 
&  East,  495,  and  by  Fearne,  879. 

(h)  See  Loddington  v.  Klme,  1  Salk.  224,  as  stated,  Fearne,  225,  373. 
Goodnight  d.  Docking  v.  Dunham,  Doug.  26  1,  as  stated,  Fearne,  375.  Doe  d. 
Comhcrbach  v.  Perrijn,  3  Durn.  &  East,  484,  as  stated,  Fearne,  376.  And  also 
Hocklcij  V.  Mawbcy,  1  Ves.  142  ;  and  Doe  d.  Gilman  v.  Elvcy,  4  East,  313; 
stated  §  530. 


Vol.  II.— 34 


[331]        II.  22.  i.]  AN  qg^D'^l^^E^  [§650-652. 

roids :  but  thcnjitr 

CHAPTER  THE  TWENTY-SECOND. 

CERTAIN  CASES  OP  CONDITIONAL  LIMITATIONS,  DISTIN- 
GUISHED FROM  CASES  OF  MERE  ALTERNATIVE  LIMITA- 
TIONS ;    AND    VICE    VERSA. 


SECTION  THE  FIRST. 

Certain  General  Rules  suggested. 

Introductory  We  have  seen  in  the  first  chapter,  that,  in  doubt-  650 

observations,  ful  cases,  a  limitation  shall,  if  possible,  be  construed 
See§  196-9.  ^  remainder,  rather  than  an  executory  devise,  whether  of 
that  kind  which  is  termed  a  conditional  limitation,  or  of 
any  other.     And,  in  the  chapter  next  preceding  the  present. 
See  §  638,     a  rule  has  been  suggested,  that  a  subsequent  limitation,  in 
645,         '     doubtful  cases,  ought  to  be   construed  as   a  remainder,  if 
possible,  rather  than  as  an  alternative  limitation.     It  now 
remains  to  give  some  rules  applicable  to  cases  where  a  limi- 
tation is  not  construed  as  a  conditional  limitation,  and  yet 
it  cannot  be  construed  as  a  remainder,  because  the  prior 
See  §  649.     limitation  carries  the  fee  in  real  property,  or  the  absolute 
See  99-10-3.  interest  in  personal  property. 

I.  Where  the      1-  Where  the  prior  limitation  carries  the  fee  in  651 

prior  interest  real  property,  or  "^the  absolute  interest  in  personal 
in  fee  is  not  property,  a  subsequent  limitation,  in  doubtful  cases,  ought 
vested  and  to  be  construed  as  an  alternative  limitation,  if  possible, 
absolutely  rather  than  as  a  conditional  limitation,  provided  the  prior 
limited,  and  limitation  cannot  fairly  be  construed  to  confer  an  interest 
the  subse-  vested  prior  to  the  event  on  which  the  subsequent  limita- 
qucnt  limita-  tion  is  to  take  effect,  and  an  absolutely  limited  interest, 
tion  is  an  al-  either  by  reason  of  the  form  of  its  original  limitation, («)  or 
ternative.  of  some  subsequent  explanatory  expressions, 
r  332  1  ^'o^'j  suppose  the  prior  limitation  to  be  executory  652 

See  §  111,     ii^  its  original  creation,  but  afterwards  to  confer  a 
75-91.      '     vested  interest,  it  would  seem  that  the  subsequent  limitation 
See  §  128-     ought,  in  a  doubtful  case,  to  be  construed,  if  possible,  as  an 
1.36,  148-      alternative,  and  not  as  a  conditional  limitation,  in  order  that 
158!  the  estate  of  the  persons  taking  under  the  prior  limitation, 

who  were  the  primary  objects  of  the  testator's  regard,  may 
not  be  defeated  in  favour  of  those  claiming  under  the  sub- 
sequent limitation,  the  secondary  object  of  his  regard.     On 

(a)  See  Wdlv.  Tomlinson,  16  Ves.  413. 


II.  22.  i.]     OF  EXECUTORY  INTERESTS.  [§G53,  G5 1.        [  332  ] 

the  other  hand,  if  the  prior  hmitatioii  never  takes  effect 
at  all,  it  is  clear  that  the  siihsequent  limitation,  even  with- 
out the  necessity  of  heing  construed  as  simply  an  alternative 
in  its  original  creation,  would  be  allowed  to  operate  as  an 
alternative,  according  to  the  doctrine  stated  in  a  subsequent  See  §  669, 
chapter.  671. 

653  No  rule  to  the  efl'ect  of  that  above  suggested 
has  been  laid  down  by  authority:  but,  it  would 

clearly  appear  to  commend  itself  to  reason  and  the  analogy 
of  law;  and  it  would  also  seem  to  be  exemplified  in  the 
cases  of  GciUand  v.  Leonard,  Home  v.  Pillans,  Monteitk 
V.  Nicholson,  and  other  cases  cited  in  the  present  chapter, 
in  support  of  other  more  specific  rules. 

654  The  construction  which  leans  towards  holding 
a  limitation  to  be  an  alternative  rather  than  a  con- 
ditional limitation,  is  sometimes  aided  by  the  doctrine  of 
remoteness.  For,  where  a  limitation  would  be  too  remote.  Sec  §  706. 
if  it  were  held  to  be  a  conditional  limitation,  but  not  too 
remote,  if  held  to  be  an  alternative,  it  should,  if  possible,  be 
construed  an  alternative,  according  to  the  maxim,  Ut  res 

magis  vuleat,  quam  pereat. 

A  testator,  after  giving  several  life  annuities,  amounting  Murray  v. 
to  270/.  a  year,  proceeded  as  follows:  "Which  210/.  per '^dden- 
annum,  as  the  several  life  aimuities  fall  in,  I  give  and  be-  I'rook,  4 
queath  to  my  aforesaid  trustees,  for  the  use  and  benefit  of  I^"ss.  407. 
the  eldest  surviving  son  of  the  aforesaid  Sir  J.  M.;  and, 
failing  the  male  issue  of  the  said  Sir  J.  M.,  to  the  daughters 
of  the  said  Sir  J.  M.  living  at  the  demise  of  such  male  issue, 
in  equal  proporiions  "  And  the  testator  disposed  of  the 
residue  of  his  property  in  the  following  manner:  "The 
remaining  produce  is  to  be  enjoyed  by  my  wife,  71/.  J/., 
during  her  natural  life;  and  then,  I  give  and  bequeath  the 
aforesaid  sums,  at  her  demise,  to  the  eldest  surviving  son  [  333  ] 
of  Sir  J.  M.,  upon  his  coming  to  the  age  of  25  years;  the 
interest  arising  therefrom,  after  the  demise  of  my  said  wife, 
to  be  applied  to  the  use  of  the  said  surviving  eldest  son,  as 
to  my  trustees  may  seem  most  proper,  till  he  comes  to  the 
age  of  25  years,  as  before  specified,  or  failing  such  male 
issue,  to  the  daughter  or  daughters  of  tlie  aforesaid  Sir  J. 
M.,  living  at  the  time  of  the  demise  of  the  last  of  such  male 
issue,  in  equal  proportions,"  Sir  J.  M.  had  one  son  only, 
J.  A/.,  who  died  under  25,  before  any  of  the  other  annui- 
tants, and  did  not  leave  any  son.  Lord  Lyndhurst,  on  a 
petition  of  appeal  as  to  the  annuities,  and  on  an  original 
jietition  as  to  the  residue,  allirmed  the  decree  of  the  JNIaster 
of  the  Rolls,  Sir  John  Leach,  as  to  the  former,  and  held,  that 
the  gift  to  the  eldest  son  was  not  too  remote ;  but  that  the 
eldest  son  surviving  the  widow,  if  there  had  been  one, 
would  have  taken,  whether  born  or  unborn  at  the  death  of 


[  333  J        11.  22.  i.]  AN  ORIGINAL  VIEW  [§655. 

the  testator;  and  lliat  such  son  would  have  taken  a  vested 
interest  in  tlie  residue,  on  the  death  of  the  widow;  because, 
the  whole  of  the  interest  was  given  to  him  from  her  decease. 
And,  for  the  reasons  given  below,  His  Lordship  held  that 
the  limitation  to  the  daughters  was  an  alternative  limitation 
to  take  cllect  if  there  should  be  no  son  surviving  the  annui- 
tants, in  the  case  of  the  annuities,  and  the  widow,  in  the 
case  of  the  residue,  in  favour  of  the  daughters,  living  at  the 
death  of  tlie  son,  or  the  last  son  who  died  in  the  lifetime  of 
the  annuitants  or  the  widow.  It  was  not  a  limitation  to 
take  effect  after  the  enjoyment  of  another  particular  estate 
by  the  eldest  son,  either  on  his  decease  after  the  death  of 
the  widow,  or  on  a  general  failure  of  his  issue;  in  either  of 
See  §  706,  which  cases  it  would  have  been  too  remote.  It  was  not  to 
714.  take  effect  after  a  general  failure  of  male  issue.     For,  the 

testator  only  contemplated  a  personal  benefit  to  such  eldest 
son  of  Sir  J.  M.  as  should  survive  the  annuitants,  or,  in  the 
case  of  the  residue,  the  widow  ;  for,  if  the  first  son  had  died 
before  the  annuitants  or  the  widow,  leaving  a  son,  the 
second  son  surviving  the  annuitants  or  the  widow  must 
have  taken,  in  exclusion  of  the  first  son.  And  the  testator 
could  not  have  meant  that  the  succession  of  the  daughters 
[  334  ]  should  depend  upon  the  failure  of  issue  male  who  were  not 
to  take  before  the  daughters.  Besides,  the  gift  was  to  the 
daughters  living  at  the  demise  of  such  male  issue.  The 
failure  he  contemplated  was  to  take  place  in  the  lifetime 
of  the  daughters ;  and  the  word  demise  is  more  referable  to 
the  death  of  an  individual,  than  to  the  extinction  of  a  whole 
line  of  issue.  Nor  was  it  to  take  eilbct  on  the  death  of  the 
eldest  son  after  the  decease  of  the  aiuiuilants  or  the  widow. 
For,  had  there  been  a  son  who  survived  the  annuitants  or 
the  widow,  he  would  have  taken  absolutely ;  and  in  no 
subsequent  event  could  the  property  have  then  devolved 
upon  the  daughters, 
n.  Where  H.  But,  where  the  prior  limitation  may  fiirly  655 

the  piior  in-  \^q  construed  to  confer  a  vested  interest  before  the 
terest  IS  vest-  event  on  which  tlie  subsequent  limitation  is  to  take  effect, 
ed  and  abso-  according  to  the  form  of  its  original  limitation,  or  by  reason 
lutcly  limit-  Qf  so^^e  other  expressions;  and  it  is  limited  absolutely,  (and 
ed,  and  the  ^^^  hypothetically,  in  the  event  of  such  person's  surviving 
subsequent,  ^^^  testator,)  there,  the  prior  limitation  shall  be  construed  to 
ndtV  n- 1  ^®  vested,  because  the  law  leans  in  favour  of  giving  a  vested 
limitation  '  interest,  especially  to  those  who  are  the  prior  objects  of  the 
See  6  200-9  testator's  bounty;  and  consequently,  the  subsequent  limita- 
*  tion,  unless  dependent  upon  an  event  to  occur  at  or  before 
See  §  128,  the  testator's  death,  shall  be  construed  a  conditional,  rather 
148-9.  than  an  alternative  limitation,  because  the  construing  it  to 

be  an  alternative  limitation,  involves  the  necessity  of  con- 
struing the  prior  limitation  to  be  either  a  contingent  or  an 
See  §  130,     hypothetical  limitation. 


II.  22.  i.J      OF  EXECUTORY  INTERESTS.  [§G55.        [  334  ] 

Thus,  where  land  is  devised  to  a  person  when  he  attains  Illustrations. 
21,  with  a  hniitation  over  in  case  of  iiis  death  under  tliat 
age-,  there,  if,  upon  the  whole  will,  tiie  prior  limitation  is 
capable  of  being  construed  to  create  a  vested  interest,  it 
shall  be  so  construed ;  and  the  limitation  over  shall  conse- 
sequently  be  construed  a  conditional,  and  not  an  alternative 
limitation. 

And  where  a  testator  gave  the  interest  of  personalty  to  Stur"-ess  v. 
t/l.,  for  life;  and,  aftcM*  her  decease,  he  gave  the  same   to  be  Pearson,  4 
equally  divided  amongst  her  three  children,  or  such  of  them  Mad.  413. 
as  should  be  living  at  her  decease,  the  same  to  be  paid  to  And  see  also 
them  at  their  age  of  21  years.     The  three  children  all  died        [  335  ] 
in  the  lifetime  of  the  tenant  for  life.     Sir  John  Leach,  V.  C,  Belh-v. 
held,  that  they  took  vested   interests.     He  observed,  that  ^'tack,  1 
the  vested  interests  first  given  by  the  will,  were,  by  the  form  Keen,  238, 
of  the  expression,  only  defeated  in  case  there  should  be  I'Ht  see  SiZ- 
some   or  one,  and  not   all,  of  the  children  living  at  the  ^'"f*%  v. 
mother's  death:  but  that  event  did  not  happen:  for,  there  "  "'*»  ^ 
was  not  one  child  living,  at  the  mother's  death.     And  he       ,  ^  .,' 
said  that  the  case  of  Harrison  v.  Foreman,  5  Ves.  207,  was  ,"      /"  '  ^' 
m  pomt.  y.    '^ .,    ' 

From  these  observations,  it  appears  that  he  thought  the  jjj  ^  jj  ' 
words  "or  such,"  &.c.  constituted  a  conditional  limitation,  vise"  381 
It  is  true,  indeed,  that  he  speaks  of  them  immediately  after-  p]_  32  •  as' 
wards  as  "the  alternative  branch  of  the  sentence;"  but  it  stated, 1 
must  not  be  supposed  from  this,  that  he  regarded  that  branch  Rop.  Lc"-. 
of  the  sentence  as  an  alternative  limitation.  If  the  first  words  507,  511. 
gave  vested  interests,  as  His  Honour  expressly  declared  they  Observations 
did,  there  could  be  no  room  for  an  alternative  limitation  :  on  Sturtress 
for,  it  would  be  contrary  to  the  nature  of  an  alternative  limi-  v.  Pearson. 
tation  to  operate  so  as  to  defeat  the  vested  interests  of  the  Sec  §  128, 
children,  in  the  event  he  mentioned,  or  in  any  other  event.  130,  148-9, 
The  words  would  indeed  admit  of  being  resolved  into  a  con-  157. 
tingent  limitation  to  the  three  children,  if  all  three  should  be 
living  at  the  mother's  death;  with  an  alternative  limitation 
in  case  all  should  not  be  then  living,  to  such  as  should  be 
then  living.     But  then,  the  children  would  only  have  had 
contingent  interests  at  first ;  and  as  they  «//  died  in  the  life- 
time of  the  mother,  neither  they  nor  their  representatives 
would  have   taken   any   thing.     And  such  a  construction 
would  have  violated  the  rule,  that  an  interest  shall,  if  possi-  See  §  200-9. 
ble,  be  deemed  to  be  vested  rather  than  contingent. 

Again;    a  testatrix   being   entitled  to  a  sum  of  money  Browne  v. 
charged  upon  her  brother's  lands,  bequeathed  the  same  to  Lord  Ken- 
trustees,  upon  trust  to  pay  the  interest  to  two  persons  and  yon,  3  .Mad. 
the  survivor;  and,  after  the  death  of  the  survivor,  to  pay  410. 
the  principal  to  i>. ;  but,  if  he  should  be  then  dead,  then,  to 
his  two  brothers,  in  equal  shares,  or  the  whole  to  the  survi- 
vor of  them.     B.  and  his  two  brothers  all  died  in  the  life- 


[  336  ]        II.  22.  i.]  AN  ORIGINAL  VIEW  [§655. 

time  of  A.,  the  surviving  tenant  for  life.     Sir  John  Leach, 
V.  C,  held,  that  the  word  "  then"  was  to  be  appUed  not  to 
the  vesting,  but  to  the  possessiou.     That  the  only  question 
arose  in  the  bequest  to  the  two  brothers,  on  the  words,  "  or 
the  whole  to  the  survivor."     That  the  obvious  meaning 
was,  that  if  one  only  survived  the  tenant  for  life,  he  should 
take  the  whole.     And  that  it  was  therefore  a  vested  gift  to 
the  two,  as  tenants  in  common,  subject  to  be  devested,  if 
one  alone  should  survive  the  tenant  for  life,  but  which  never 
was  devested,  because  that  event  did  not  happen. 
Observations      It  would  appear,  at  first  sight,  that,  in  this  case,  there 
on  Browne     were  a  succession  of  alternative  limitations;  that  B.  was  to 
v.Lord         take,  if  he  were  living  at  the  death  of  the  tenant  for  life  ;  or 
Kenyon.        ^Y\q  two  brothers  of  B.,  if  he  were  not  living  at  the  death  of 
bee  ^  136a.  ^j-^g  tenant  for  life,  and  the  brothers  were ;  or  the  survivor 
of  the  two  brothers,  if  only  one  of  them  should  be  living  at 
the  death  of  the  tenant  for   hfe.      If  B.  had  survived  the 
See  §  99-       tenant  for  life,  he  would  have  taken  the  absolute  interest ; 
103.  for,  the  principal  was  to  be  absolutely  paid  over  to  him: 

and  his  brothers  were  only  to  take  in  the  event  of  his  not 
surviving  the  tenant  for  life.  And  hence  it  would  at  first 
sight  seem  impossible  that  they  should  take  vested  interests 
before  the  death  of  B.  in  the  lifetime  of  the  tenant  for  life : 
for,  up  to  that  time,  there  was  a  probability  that  the  absolute 
interest  might  become  vested  in  B.,  to  the  entire  exclusion 
of  his  brothers.  And  even  after  the  death  of  B.,  in  the  life- 
time of  the  tenant  for  life,  it  may  be  thought  that  the  brothers 
See  §  96-8.  cannot  be  consistently  regarded  as  taking  vested  interests, 
liable  to  be  devested  in  the  event  of  one  alone  surviving  the 
tenant  for  life :  for,  if  the  representatives  of  the  one  who 
died  in  the  lifetime  of  the  tenant  for  life,  were  not  to  take, 
in  the  event  of  the  other  surviving  the  tenant  for  life,  why 
should  the  representatives  of  either  of  them  take,  in  the 
event  of  both  of  them  dying  in  the  lifetime  of  the  tenant  for 
life?  Would  not  the  same  intention  which  would  devest 
the  moiety  of  one  brother,  in  the  first  case,  equally  require 
that  the  entirety  taken  by  the  two  brothers  should  go  from 
them,  in  the  latter  case  ?  Surely,  then,  (it  may  be  argued) 
if  both  survived  the  tenant  for  life,  they  were  to  take  the 
[  337  J  whole  between  them  ;  if  one  alone  survived,  that  one  was 
to  take  the  whole;  if  neither  survived,  neither  were  to  take 
any.  Such,  indeed,  would  prima  facie  appear  to  be  the 
true  construction  of  the  will.  But,  it  is  to  be  observed,  that 
See  §  200-9.  the  law  favours  vesting ;  that  the  first  words,  "  to  his  two 
brothers  in  equal  shares,"  would,  of  themselves,  confer  a 
vested  interest  on  the  death  of  B.;  and  that  the  subsequent 
words,  instead  of  serving  to  qualify  the  preceding  words,  so 
as  to  suspend  the  vesting,  may  fairly  be  considered  as  merely 
a  short  irregular  way  of  expressing  the  same  thing  as  if  it 


II.  22.  i.]     OF  EXECUTORY  INTERESTS.  [§655.        [  337  ] 

had  been  said,  "  but  in  case  of  the  death  of  cither  of  them  in 
the  Uih  of  the  prior  taker,  then,  to  tbe  snrvivor;"  ''whieh 
would  liave  been  a  conditional  limitation,  and  not  an  alter- 
native ;(Z>)  and  which  would  have  been  a  species  of  limitation 
very  common  in  such  cases.  And  as  to  the  above  argu- 
ment upon  the  intention,  such  would  probably  have  been 
the  intention,  if  there  had  been  an  ulterior  limitation  ;  but, 
in  this  case,  the  two  brothers  were  the  only  more  remote 
object  of  the  testator's  bounty,  and  the  question  of  prefer- 
ence in  his  mind,  lay  between  the  representative  of  a  de- 
ceased brother,  and  a  surviving  brotiier,  and  not  between  the 
representatives  of  the  deceased  brothers,  and  any  other  indi- 
viduals. 

The  same  point  was  established  in  another  case  where  a  Bromhead 
testator  gave  personal  proj)crty  to  trustees,  to  be  settled  on  v.  llu)it^  2 
the  marriages  of  his  daughters,  for  their  separate  use;  and,  Jtio-  & 
on  their  deaths,  upon  trust  for  their  children;  with  a  limita-  Walk.  403. 
tion  over  in  the  event  of  either  of  his  daughters  dying  with- 
out having  been  married,  or  without  leaving  any  cliildren 
her  surviving.  M.  E.,  one  of  the  daughters,  had  three  chil- 
dren, of  whom  only  one  survived  her;  and  he  claimed  the 
whole  of  AI.  E.'s  share,  insisting,  that  the  vesting  of  the 
gift  was  suspended  till  tlie  daughter's  death,  inasmuch  as 
the  representatives  of  none  of  the  children  of  J\L  E.  would 
have  taken,  if  all  the  children  had  died  before  her;  and  it 
could  not  have  been  intended  that  the  right  of  tlie  represen- 
tatives of  those  who  died,  should  depend  on  the  circum-  [  338  ] 
stances  of  one  surviving  M.  E.  But  the  Lord  Chief  Baron, 
assisted  by  two  of  the  Masters,  sitting  for  the  Master  of  the 
Rolls,  held,  that  the  shares  of  the  children  of  each  daughter 
were  vested,  subject  to  be  devested  in  the  event  of  all  dying 
before  their  mother;  and  there  being  one  child  of  M.  E. 
alive  at  her  death,  that  the  representative  of  the  two  other 
children  who  died  before  lier,  was  entitled  to  their  shares. 
The  Lord  Chief  Baron  remarked,  that  there  was  no  limita- 
tion over  in  the  event  of  some  of  the  children  dying  in  the 
hfetime  of  their  mother ;  and  if  it  were  to  be  supplied,  it 
could  only  be  by  inference.  And  he  referred  to  Skey  v. 
Barnes,  3  Mer.  335,  and  Sturges  v.  Pearson,  4  Mad.  -Ill, 
as  direct  authorhies  for  the  principle  on  which  the  Court 
proceeded  in  the  above  decision. 

But  where  a  testator  gave  all  the  residue  of  his  real  and  IFowes  v, 
personal  estate,  in  trust  to  sell,  and  invest  the  produce,  and  Herring, 
apply  so  much  of  the  interest  to  dividends  as  might  be  neces-  M'Clel.  tSi 
sary,  for  the  maintenance  of  his  five  children,  during  their  You.  295. 
minorities,  and  to  accumulate  the  surplus  for  their  benefit; 

{h)  See  Harrison  v.  Foreman,  5  Yes.  207;  Deane  v.  Test,  9  Yes.  147;  Da 
vidson  V.  Dallas,  14  Yes.  576. 


[  33S  ]        II.  22.  ii.]  AN  ORIGINAL  VIEW  [§656. 

and,  upon  their  severally  attaining  21,  to  pay  them  2500/. 
each  ;  and,  in  case  there  should  be  any  overplus,  to  pay  and 
divide  it  unto  and  amongst  all  his  five  children,  or  such  of 
them  as  should  be  living  at  the  time  when  the  youngest  of 
them  should  attain  21,  share  and  share  alike.  But,  never- 
theless, that  in  case  any  of  his  five  children  should  die  under 
21,  without  issue,  then,  the  share  or  sliares  of  such  child  or 
children  should  go  to  the  survivors  or  survivor.  Ikit,  if  any 
one  or  more  should  die  under  21,  leaving  issue,  then,  his, 
her,  or  their  share  or  shares  should  go  to  such  their  issue. 
One  of  the  children  attained  21,  and  died,  leaving  issue,  but 
before  the  youngest  child  had  attained  21.  It  was  held, 
that  the  child  so  dying  did  not  take  a  vested  interest  in  the 
surplus  of  the  testator's  estate;  and  that  her  issue  took  no 
interest  in  such  surplus;  but  that  the  whole  of  such  surplus 
went  to  the  surviving  children  of  the  testator. 
Observations  In  this  case,  a  dilferent  construction  was  adopted,  because 
on  Ilcnves  v.  the  gift  of  the  surplus  was  clearly  contingent :  for,  not  only 
Herring.  JU  the  words  prima  facie  import  that  the  surplus  was  in- 
tended for  those  alone  who  should  be  living  when  the 
youngest  child  should  attain  21;  but  it  was  uncertain  till 
[  339  ]  that  period  whether  there  would  be  any  surplus,  and,  if 
any,  what  would  be  the  amount  thereof.  (See  Gibbs  v. 
Tail,  8  Sim.  132,  stated,  §  597.) 

SECTION  THE  SECOND. 

Certain  Specific  Rules  as  to  the  Period  to  lohich  the  Event 
of  Dculh,  when  mentioned  as  if  it  tucre  a  Contiiigent 
I.  Where  Event,  is  to  be  referred. 

personal  es-        I.  Where  personal  estate  is  given  to  a  person  656 

tate  is  limit-  indefinitely  or   absolutely,    "  and   in  case    of  his 
ed  over  in      death,"   or,  "  in  the  event  of  his  death,"  to  another;  this 
case  or  in  the  disposition,  though  apparently  constituting  a  gift  of  a  life  in- 
e\ent  ot  terest,  with  a  quasi  remainder,  or,  more  strictly,  a  gift  of  the 

4]  ]  Vu  •  absolute  interest,  with  a  conditional  limitation  over  to  take 
J  I  ]  /  1  eflect  on  the  death  of  the  prior  taker  whenever  it  may  hap- 
death^nThe  P^n^  (see  168,  99—103,  148—158,)  is,  Mn  the  absence  of  all 
testator's  indications  of  a  contrary  intent, (c)  construed  to  amount  to 
lifetime.  ^'^  hypothetical  limitation   of  the  absolute  interest,  to  take 

See  §  114.  cfl'ect  in  the  event  of  the  person  named  as  first  taker  surviv- 
See  §  128-  i"g  *''g  testator,  with  an  alternative  limitation  over,  to  take 
136.  effect  '^in  case  of  the  death  of  the  first  taker  in  the  lifetime 

of  the  testator,(c/)  unless  there  is  a  gift  of  a  particular  interest 

(c)  Billings  V.  Sandom,  1.  B.  C.  C.  393;  and  Nowlan  v.  Nelligan,  1  B.C. 
C.  489  ;  as  stat(.-d,  2  Jann.  Pow.  on  Dev.  760, 

(ft)  Trotter  v.  Williams,  Pre.  Clm.  78;  S.  C.  2  Eq.  Ca.  Ab.  344,  pi.  2,  as 
staled,  2  Jarm.  Pow.  on  Dev.  759. 


II.  22.  ii.]     OP^  EXECUTORY  INTERESTS.  [§657.        [  339  ] 

in  tho  same  property,  aiileccdont   to  the  gilt   to  the  person  See  §  658. 
whose  death  is  spoken  of,  or  a  mention  of  some  period  to 

which  his  death  can  he  referred.     Amongst  other  See  §  059. 
657  reasons  mentioned  in  a  subsequent  page,  this  con- 

struction is  adopted  in  order  to  satisfy  the  import 
of  the  words  "in  case,"  or  "in  the  event  of,"  which  de- 
note a  contingency,  wliercas  death  at  some  time  or  other, 
and  not  at  a  given  time,  or  under  ])articnlar  circumstances, 
is  not  a  contingency,  but  a  thing  inevitaljle. 

A  testatrix  gave  to  her  sister,  everything  she  had  power  jUnrhley  v. 
to  leave  [which  inchided  leasehold  premises  and  other  per-  Simmons,  4 
.sunal  estate],  and,  in  case  of  her  death,  she  then  gave  all  Vcs.  IGO. 
she  had  to  her  mother.     I^ord  Loughborough,  C,  held,  on         [  340  ] 
the  authority  of  Lnicfiehl  v.  St(nic/unn,  2  Str.  lUGl,  that  the 
words  imported  contingency,  and  that  the  sister  was  entitled 
absolutely. 

Tiie  Lord  Chancellor  must  therefore  have  considered  the  Observations 
disposition  as  amounting  to  an  hypothetical  limitation  to  the  on  Hinclhy 
sister  absolutely,  if  she  should  be  living  at  the  death  of  the  v.  Simmons. 
testatrix,  with  an  alternative  limitation  to  the  mother,  in 
case  of  the  sister's  death  in  the  lifetime  of  the  testatrix.     It 
may  be  observed,  that  the  opposite  construction,  that  of  the 
words  referring  to  death  at  any  time,  was,  in  this  case,  ex- 
tremely improbable,  inasmuch  as  it  was  very  unlikely  that 
the  mother  would  survive  the  sister,  if  the  sister  survived 
the  testatrix,  and  continued  to  live  as  long  as  it  might  be 
supposed  she  would. 

Again;  a  testator  bequeathed  to  his  eldest  sister,  M.,  Camhridge 
4000/.;  and,  in  case  of  her  death,  to  devolve  upon  her  sister  \'-  Jious,  8 
C.  And  he  bequeathed  to  C,  4000/.;  and,  in  case  of  her  ^'^'s.  12. 
death,  to  devolve  npcMi  her  sister  M.  Sir  W.  Grant,  INI.  R., 
held,  that  the  words  referred  to  a  death  in  the  testator's  life- 
time. His  Honour  observed,  that  the  words  had  not  in 
themselves,  nor  liad  they  by  construction  received,  a  precise 
and  definite  meaning,  in  which  they  must  be  uniformly  \\n- 
derstood.  That  the  expression  was  incorrect,  either  in  jiot 
specifying  the  period  to  which  the  death  was  to  be  referred, 
if  a  conliug(!ncy  was  meant,  or  else  in  applying  words  of 
contingency  to  an  event  certain,  if  they  refer  to  death  gene- 
rally, whenever  it  may  happen.  (S  \'es.  21.)  That  the  con- 
struction therefore  must  depend  upon  the  intention.  [lb. 
23.)  That  it  was  absurd  to  suppose  that  wlicn  M.  died, 
her  4000/.  was  to  go  from  her  family  to  C,  and  when  C 
died,  her  4000/.  was  to  go  to  J/.'s  family:  and,  to  prevent  that 
■construction,  the  words  "  in  the  lifetime  "  of  the  other  must 
be  supplied,  which  would  be  departing  from  the  construc- 
tion of  dying  geni^rally,  and  so  far  giving  way  to  the  argu- 
ment of  the  other  side.  {lb.  24.)  And  then  [even  if  these 
words  were  to  be  supplied,  still]  during  their  joint  lives, 
Vol.  II. — oo 


[   340  ]        II.  22.  ii.] 


AN  ORIGINAL  VIEW 


[§657. 


[   341   ] 

Slack  \.  Mil- 
ner,  4  Mad. 
144. 


Ommaney  v, 
Sevan,  18 
Ves.  291. 


Crigan  v. 
Baines,  7 
Sim.  40. 
See  also 
Child  V. 
Gihletf,  3 
M.  &  K.  71 


[   342   ] 
Lord  /Jong- 
las  V.  Chal- 
mer,  2  Ves. 
Jun.  500. 


neither  could  touch  a  shilling;  and  if  one  died  leaving  chil- 
dren, her  share  could  not  have  been  used  for  her  family,  but 
\vould  have  gone  to  her  sister  for  no  other  reason  but  that 
she  happened  to  survive.  {lb.  23.) 

And  where  a  testatrix  made  the  following  bequest :  "  to 
M.  S.,  2000/.  stock;  and,  in  case  of  her  death,"  the  said 
2000/.  shall  then  be  equally  divided  between  her  children. 
She  also  made  other  bequests  in  similar  terms.  And  after 
disposing  of  the  residue,  slie  added  the  following  direction: 
'*in  case  these  my  residuary  legatees  shall  have  departed 
this  life  before  me,  and  consequently  before  this  will  takes 
place,  it  is  then  my  will  that  the  aforesaid  residuum  .... 
shall  then  be  equally  divided  between"  &c.  It  was  argued, 
that  M.  S.  took  an  estate  for  life  only,  with  a  remainder  to 
her  children,  inasmuch  as  it  appeared  that  when  the  testa- 
trix intended  to  make  a  bequest  over  in  the  event  of  the 
legntcc  dying  before  her,  she  distinctly  said  so.  But  Sir 
John  Leach,  V.  C,  held,  that  the  words,  "  in  case  of  her 
death,"  referred  to  a  dying  before  the  testatrix;  and  that  as 
31.  S.  survived  the  testatrix,  she  took  absolutely.  He  ob- 
served, that  the  interest  of  the  legatee  was  not  limited  to  her 
Hfe ;  and  that  "  in  case  of  her  death"  imported  contingency, 
or  death  which  might  or  might  not  happen  before  another 
event.  And  that  the  residuary  clause  only  showed  that  the 
testatrix  had  in  her  contemplation  the  possibiUty  that  the 
legatees  might  die  before  her. 

So  where  a  testator  gave  his  residuary  real  and  personal 
estate  in  trust  for  t,2.  P.;  and,  in  case  of  her  death,  to  be 
equally  divided  between  the  children  of  JV.  fV.,  A.  P.  sur- 
vived the  testator,  and  then  died  ;  and  Sir  W.  Grant,  M.  R., 
decreed  payment  to  her  executor,  as  having  taken  the  abso- 
lute interest. 

So  also  where  a  testatrix  bequeathed  4000/.  to  A. ;  and, 
in  case  of  his  decease,  she  gave  the  same  to  his  wife ;  and, 
at  her  decease,  to  their  eldest  daughter.  Sir  L.  Shad  well, 
V.  C,  held,  that  Ji.,  having  survived  the  testator,  was  abso- 
lutely entitled  to  the  legacy. 

In  another  case,  however,  it  was  considered  that  the  tes- 
tator intended  the  gift  over  to  take  effect  at  the  death  of  the 
legatee,  whenever  it  might  happen;  and  therefore  it  was 
construed  accordingly.  In  that  case,  a  testatrix  bequeathed 
all  the  residue  of  her  personal  estate,  in  trust  for,  and  to  the 
use  and  behoof  of,  her  daughter,  Lady  D. ;  and,  in  case  of 
her  decease,  to  the  use  and  behoof  of  her  children,  share  and 
share  alike,  to  whom  her  trustees  and  executors  should  ac- 
count for  and  assign  the  said  residue.  And,  by  a  codicil, 
she  declared,  that  she  would  have  her  wearing  apparel 
given  to  her  housekeeper,  M.  M.,  or,  if  she  should  be  dead 
before  the  testatrix,  to  have  these  things  divided  between 


II.  22.  ii.]    OF  EXECUTORY  INTERESTS.  [§G58.        [  342  ] 

whoever  is  in  her  ))Iac(',  and  the  testatrix's  chambermaid. 
Lord  Loughborough,  C,  held,  that  Lady  1).  took  only  a 
life  interest,  and,  at  her  decease,  the  children  were  to  take 
the  capital.  His  Lordship  observed,  that,  taking  the  words 
by  themselves,  such  a  gift  naturally  implies  that  kind  of  dis- 
position, and  that  it  would  be  much  too  subtle  to  make  a 
dilTerenl  construction  from  that  which  would  arise  from  the 
words,  "at  her  decease,"  or  "from  lier  decease."  He  also 
adverted  to  tlie  fact,  that  the  codicil  expressed  the  very  con- 
tingency upon  which  the  limitation  to  the  children  was  sup- 
posed by  the  plaintilfs  to  depend.  And  His  Lordshi[)  con- 
cluded by  saying,  that  if  he  were  to  adopt  tiie  other  con- 
struction, the  whole  residue  would  vest  in  Lord  D. ;  the 
children  could  not  take  by  Lady  Z>.'s  gift ;  for  she  could 
have  no  power  to  give  it;  nor  could  they  take  as  represen- 
tatives of  her,  nor  as  sole  representatives  of  Lord  D. ;  for  he 
had  other  children  by  a  former  wife.  On  a  subsequent  daj^ 
the  matter  was  reheard,  but  the  Lord  Chancellor  adhered  to 

the  same  opinion. 
658  II.  Where  there  is  a  gift  of  a  particular  interest  n.  Where 

in  the  same  property,  antecedent  to  the  gift  to  the  personal  es- 
person  whose  death  is  spoken  of,  tRe  death,  in  the  absence  tate  is  so  li- 
of  all  indications  of  a  contrary  intent,  is  construed  to  be  a  mited  over, 
death  in  the  lifetime  of  the  first  taker,  whether  subsequent  or  and  the  death 
prior  to  the  death  of  the  testator.  is  held  to  be 

A  testatrix  gave  personal  estate,  in  trust  for  E.  T.,  for  a  death  in 
life  ;  and,  after  the  death  of  E.  T.,  she  gave  the  same  to  the  the  lifetime 
three  children  of  E.  7'.,  to  be  divided  among  them,  in  equal  *^^ ''  P'''°'" 
shares ;  and,  in  case  of  the  death  of  either  of  them,  the  share  ^^'^'^^'' 
of  such  of  them  as  may  die  to  go  to  the  children  of  the  per-  Ilervey  v. 
sons  so  dying.     It  was  held,  that  one  of  the  children,  who  M-Laugh- 
died  in  the  lifetime  of  E.  T.,  took  a  vested  interest,  subject        [  343  ] 
to  be  devested  by  iiis  death  in  the  lifetime  of  E.  7'.,  the  I'm,  1  Pri. 
tenant  for  life,  leaving  issue;  and  consequently  his  share  264. 
belonged  to  his  children,  and  not  to  liis  personal  represen- 
tatives. 

Again ;    a  testator  bequeathed  his  leasehold  and  other  Clar'ke  v. 
personal  estate  to  his  wife,  for  life  ;  and,  after  her  death,  to  (lould,  7 
a  trustee,  in  trust  to  pay  the  rents  and  profits  tor  and  towards  Sim.  197. 
the  support  and  maintenance  of  his  six  nephews  and  nieces  ; 
and,  in  case  of  the  death  of  any  of  them,  lor  the  support 
and  maintenance  of  the  survivors.     Sir  L.  Shadwell,  V.  C, 
held,  that  the  words  referred  to  a  death  in  the  lifetime  of  the 
tenant  for  life ;  and  that  a  niece  who  died  after  having  sur- 
vived both  the  testator  and  the  tenant  for  life,  had  become 
absolutely  entitled  to  one  sixth  of  the  property. 

And  where  a  testator  gave  all  his  copyhold  and  leasehold  7,^  Jemie  v. 
projierty,  and  all  other  his  property,  to  his  wife,  for  life  ;  and,  j,c  Jeune,  2 
at  her  decease,  he  directed  it  to  be  sold,  and  to   be  divided  Btav.  701. 


[  343  J        II.  22.  ii.]  AN  ORIGINAL  VIEW  [§G59,  GGO. 

into  live  equal  shares,  one  of  wliicli  he  directed  to  be  paid 
to  each  of  four  sons  that  should  be  living  at  the  time  of  her 
decease.  And,  in  case  of  cither  of  their  deaths,  then,  the 
share  of  such  so  dying  to  be  paid  to  his  issue.  Lord  Lang- 
dale,  ]M.  R.,  lield,  that  the  child  of  a  son  who  died  in  the 
testator's  lifetime  was  entitled  to  his  share;  His  Lordship 
observing,  that  the  words,"  in  case  of  either  of  their  deaths," 
might  be  referred  to  any  time  prior  to  the  death  of  the  tenant 
for  life,  even  though  the  time  should  be  in  the  lifetime  of  the 
testator  himself. 
Smith  V.  This  construction  is  supported  by  another  case,  where  the 

Smith,  8  death  was  cxprasli/  a  death  in  the  lifetime  of  the  wife,  who 
Sim.  353.  was  tenant  for  life  of  the  residue.  The  words  were:  "pro- 
vided that  in  case  any  of  my  children,  who  shall  happen  to 
die  in  the  lifetime  of  my  wife,  shall  have  left  issue"  &c. 
And  Sir  L.  Shad  well,  V.  C.,held,  that  the  case  of  T/wrnhi/l 
V.  Thornhill,  4  Mad.  377,  was  wrong ;  and  that  the  issue 
of  a  child  who  died  in  the  wife's  lifetime,  prior  to  the  testa- 
tor's decease,  was  entitled  to  a  share. 
iJUes  V.  Ill  tlie  case  of  Giles  v.  Giles,  the  testator,  at  the  date  of 

Giles,  b         his  will,  had  but  one  daughter;    but  he  had  had  another 
Sim.  360.      daughter,  and  she  left  issue,  who  survived  him:  and  Sir  L. 
[  344  ]        Shadwell,  V.  C,  held,  that  such  issue  was  entitled  to  a  share 
in  the  residue.     And  though  this  decision  was  grounded  on 
the  special  reason,  that  it  appeared  from  the  word  "daugh- 
ters," as  used  in  one  passage  of  the  will,  that  the  testator 
was  contemplating  a  provision  for  the  issue  of  more  than 
one  daughter;  yet,  the  learned  Judge  observed,  that  it  may 
be  reasonably  supposed,  that  the  testator  intends  as  much  to 
provide  for  his  grandchildren,  by  a  child  then  living,  but 
which  may  thereafter  die. 
III.  Where         III.  Wliere,  indeed,  the  will  furnishes  any  other  C59 

personal  es-   period  besides  the  death  of  the  testator,  to  wliich 
tale  is  so  li-    the  death  of  the  legatee  can  be  referred,  it  will  be  held,  in 
mited  over,    the  absence  of  indications  of  a  contrary  intent,  to  mean  a 
and  the  death  before  such  other  period  ;  ''  rather  than  a  death  gener- 

death  is  held  ^Hy  ^^  some  time  or  other,  and  indeed  rather  than  simply  a 
to  be  a  deatli  f[p^i\i  before  the  testator  :(e)  because,  it  is  more  natural  for 
at  some  g^  testator  to  provide  against  the  death  of  a  legatee  before 
o  her  peiiod.  ^q^^  event  which  may  and  probably  will  happen  subse- 
quent to  his,  the  testator's,  own  decease,  than  for 
him  simply  to  provide  against  the  legatee  dying  660 

before  himself.     And  if  the  death  is  construed  to 
mean  a  death  at  a  period  prior  to  the  vesting  of  the  interest 
See  §  128-     in  the  party  whose   death  is  spoken  of,  the  gift  over  is  an 
136.  alternative  limitation  ;  but  if  it  means  a  death  at  a  period 

See  §  148-     subsequent  to  the  vesting  of  such  interest,  it  is  a  conditional 
158.  limitation. 

(e)  Sec  Home  v.  Pillans,  2  M.  &  K.  15,  stated,  §  663. 


II.  22.  ii.]     OF  EXECUTORY  INTERESTS.  [§GG1.        [   3-14   ] 

601  IV.  Where  the  a:'\{\  over  is   iiitro(hiced   l)y  the  I\'.  Where 

words  ''if  he  should  die,"  or  by  the  words  "or  in  die  gilt  over 
case,"  or  by  the  words  '•  hut  in  case,"  instead  of  the  words  is  introduced 
"and  in  case  of  his  death,"  tlie  intention  to  refer  to  a  death  '*>'  "'''^'' 
in  the  testator's  hfetinic,  or  at  sonic  other  particnlar  period,  "'J''^)-^  ^^ 
instead  of  death  generally  whenever  it  may  happen,  is  still  contingency, 
more  clear. 

A  testatrix  gave  to  her  son,  wiien  ho  had  attained  23,  Kini(  v. 
certain  sums  of  stock,  and  also  household  goods  &c.,  and  to  Taylor,  5 
lier  daughter,  certain  other  sums  of  stock,  and  the  ti^statrix's  Vcs.  800. 
wearing  apparel.  And  siic  willed,  that  if  either  of  her  chil- 
dren should  die,  the  surviving  child  should  have  what  she  [  3  15  ] 
had  left  to  the  other.  The  daughter  survived  the  testatrix, 
and  then  died,  leaving  the  son  surviving.  It  was  argued, 
lliat  the  clause  of  survivorship  referred  to  the  event  of  death 
in  the  testatrix's  lifetime  :  for,  it  was  impossible  that  the 
linen,  wearing  apparel,  and  china,  were  intended  to  he  used 
only,  witliout  any  absolute  interest  in  them,  till  the  deatli  of 
one  of  the  children  ;  and  it  was  not  likely  that  the  testatrix 
would  have  fixed  the  age  of  23,  in  the  bequest  to  the  son, 
if  she  intended  each  child  should  have  only  the  interest  till 
the  death  of  one  of  them.  And  Sir  R.  P.  Arden,  INI.  R., 
held,  that  the  clause  did  refer  to  the  case  of  lapse  by  death 
in  the  testatrix's  lifetime.  lie  remarked,  that  the  words 
were,  "  if  either  should  die,"  and  not  "  in  case  of  her  death," 
as  in  the  cases  of  Billings  v.  Sciiidom,  and  Noivhm  v.  Ncl- 
ligan,  1  liio.  C.  C.  393,  39S.  That  the  reasons  for  decision  in 
Lord  Douglas  v.  ChalmeriWCi  not  apply  to  this  case.  And 
that  in  Billings  v.  Sandom,  there  was  nothing,  upon  the 
l^ice  of  the  will,  to  restrain  the  construction  to  dying  in 
the  life  of  the  testator,  wliicli  would  not  be  supposed  to  bo 
the  intention,  unless  there  could  be  no  other.  But,  the  pre- 
sent case,  His  Honour  added,  was  exactly  like  Trotter  v. 
JVilliams,  Pre.  Ch.  7S  ;  and  the  construction  that  the  words 
meant,  whenever  the  death  of  either  should  happen,  would 
be  totally  inconsistent  with  the  rest  of  the  will ;  and  there- 
fore, there  was  an  absolute  interest  in  the  daughter,  at  the 
death  of  the  testatrix,  and  in  the  son,  at  23. 

So  where  a  testator  bequeathed  a  sum  of  stock  to   his  Turner  v. 
nephew,  B.  D.,  then  or  then  lately  residing  in  Intlia,  or,  in  Moor,  u 
case  of  his  death,  to  his  lawful  issue;  but,  if  his  nephew  \'cs.  556. 
should  be  deceased  at  the  time  of  his  death,  without  leaving 
any  lawful  issue,  then,  he  bequeathed  to  J.  7'.,  or,  in  case 
of  his  decease,  to  his  lawful  issue,  part  of  the  stock.     Also, 
in  like  manner,  he  bequeathed  another  part  to  B.  T.,  or  his 
lawi'ul  issue.     Also,  in  like  manner,  he  bequeathed  another 
part  to  M.  B.,  then  or  then  lately  residing  in  the  town  of 
Leith,  or,  in  case  of  his  death,  to  his  lawfnl   issue.     The 
Master  staled  his  opinion  to  be,  that  B.  D.  died  in  the  tes- 


[  345  ]        II.  22.  ii.]  AN  ORIGINAL  VIEW  [§G61. 

talor's   lifetime,  unmarried.     Sir  W.  Grant,  M.  R.,  (after 
adverting  to  the  circumstance,  tliat  the  will  was  made  eleven 
[  346  ]        years  after  Ii.  D.  had  sailed  on  a  voyage  in  which   in  all 
probability  he  perished,)  as  a  reason  why  the  testator  ex- 
pressed himself  with  more  particularity  as  to  Ii.  Z).,  observed, 
that  the  testator  having  clearly  expounded  his  meaning  in 
one  instance,  must  be  supposed  to  have  the  same  meaning 
by  the  same  words  in  the  other  parts ;  and  that,  in  the  pre- 
sent case,  it  was  clear  that  the  parent  and  the  children  were 
not  both  to  take,  but  either  the  parent  or  the  children  in  the 
alternative  ;.  whereas,  in  Billini^s  v.  Sandom.,  and  in  Lord 
Douglas  V.  Chalmer,  the  word  "  and"  was  used,  showing 
that  both  were  to  take — the  parent  and  the  children. 
Webster  v.         And  where  a  testator  gave  a  sum  of  stock,  in  trust  for  the 
Hale,  8  Ves.  use,  exclusive   right,  and    property  of  his   sister   C;   but, 
410.  should  C.  happen  to  die,  then  the  stock  was  to   be  divided 

among  C'.'s  children.  And  he  bequeathed  to  her  another 
sum,  to  be  paid  to  her  as  soon  as  possible ;  or,  in  the  event 
of  her  death,  the  said  sum  was  to  be  divided  among  the 
children.  He  also  bequeathed  to  his  sister,  H.,  a  sum  of 
stock ;  and,  in  case  of  her  death,  the  sum  was  to  be  divided 
among  her  children.  Sir  W.  Grant,  M.  R.,  held,  that  the 
limitations  to  the  children  were  alternative  dispositions,  the 
word  "  but"  being  used  in  the  first  bequest,  and  that  word 
being  disjunctive  and  adversative,  opposing  one  case  to  an- 
other; the  word  "or"  occurring  in  the  second,  as  well  as  a 
previous  direction  for  payment,  strongly  implying  entire  and 
absolute  property;  and  it  being  by  no  means  probable,  as 
to  the  third  bequest,  that  the  testator  meant  to  make  any 
ditTerence  between  //.  and  her  sister. 

In  another  case,  however,  it  clearly  appeared  to  be  the 
testator's  intention  that  the  gift  over  should  take  effect  on 
the  legatee's  death,  whenever  it  might  happen  ;  and  there- 
fore it  was  construed  accordingly.     In  that  case  a  testator 
Smart  v.       bequeathed  as  follows  : — "  I  give  to  my  son  E.  C,  who  is 
C/ark,  S        hq^  ^t  sea,  the  interest  of  500/.  stock,  during  his  life,  if  he 
Russ.  36.5.     comes  to  claim  the  same  within  five  years  after  my  decease  ; 
but,  if  he  should  die,  or  not  come  to  claim  the  same  within 
tlie  lime  limited,  then,  I  give  the  said  stock  to  the  children 
of  my  daughter  ^?in  Smart,  with  ali  the  interest  that  may 
[  347  ]        be  due  thereon."     The  residue  of  his  estate  he  bequeathed 
to  his  four  daughters.     E.  C.  came  and  claimed  the  stock 
within  the  five  years,  received  the  dividends  during  his  life, 
and  died  after  the  five  years  had  elapsed.     The  Lord  Chan- 
cellor, on  the  authority  of  Billings  v.  Sandom,  1  Bro.  C.  C. 
394,  held,  that  the  children  of  the  daughter  were  entitled, 
though  E.  C.  did  not  die  within  the  five  years.     Tlie  word 
"if,"  as  pri?nu  facie  importing  a  contingency,  would,  at 
first  sight,  seem  to  show  that  the  children  of  the  daughter 


II.  22.  ii.]  OF  EXECUTORY  INTERESTS.  [§GG2,  663.        [  317  ] 

were  only  to  take  if  E.  C.  sliould  die  within  the  five  years. 
But,  as  their  counsel  remarked,  "  the  testator  was  naturally 
drawn  into  the  use  of  an  expression  importing  contingency  ; 
because  one  event  for  which  he  was  providing,  namely,  that 
oi  Edivard  uoX  c\:\\\x\\u^  the  legacy  within  five  years,  was 
contingent." 

662  V.  Ev(;n  where  the  gift  over  is  not  merely  de-  V.  Where 
pendent  on  the   simple  event  of  death,  hut  is  to  the  gift  over 

take  elfect  "  in  case  of  the  death  leaving  children,"  or  ''in  is  not  simply 
case  of  the  person  "dying  unmarried  and  without  issue,"(/)  on  the  event 
the  event  will  be  construed  to  mean,  not  a  death  generally  of  death, 
at  some  time  or  other,  but  a  death  in  the  testator's  lifetime, 
or  at  some  other  particular  time,  if  the  fund  or  property 
itself,  and  not  merely  the  interest  or  income  is  given  "abso- 
lutely" to  the  person  whose  death  is  spoken  of;  or,  if  it  is 
not  to  vest  till  a  future  period,  and  the  dying  may  fairly  be 
referred  to  a  dying  before  that  period;  or  if,  for  any  other 
reason,  it  does  not  appear  that  the  testator  intended  to  refer 
to  death  generally. 

663  In  these  cases,  the  difficulty  of  this  construction  Grounds  of 
is  much  greater;  because,  the  event  not  being,  as  the  rule. 

in  the  other  cases,  simply  the  death  of  the  legatee,  but  being 
in  fact  entirely  contingent,  it  is  unnecessary,  for  the  mere 
purpose  of  satisfying  its  contingent  import,  to  construe  the 
event  to  mean  a  death  at  any  particular  time.  But,  such  a 
construction  is  considerably  aided  by  the  policy  of  the  law, 
which  ought  to  lean  in  favour  of  the  primary  objects  of  the 
testator's  bounty,  and  also  favours  the  absolute  enjoyment  [  318  ] 
and  the  transfer  of  property,  which  would  be  prevented  by  See  §  223-6. 
the  opposite  construction. 

In  a  case  of  a  residuary  devise  of  real  and  personal  estate.  Doe  d.  Lif- 
the  words,  "  in  case  of  the  death,"  were   held  to  refer  io  fod  v.  Spar- 
death  in  the  lifetime  of  the  testator;  the  testator  having  ex-  '■^"S  13 
pressly  confined  some  of  the  limitations  to  the  event  of  a  ^^^U  359. 
death  in  his  lifetime;  from  which,  and  for  other  reasons,  it 
might  be  inferred  that  he  was  contemplating  a  death  in  his 
lifetime  in  the  preceding  clause,  when  he  spoke  of  the  death 
of  either  his  son  or  daughter,  leaving  issue. 

And  where  testator  gave   personal  estate,  in  trust  to  pay  Galland  v. 
the  interest  to  his  wife,  lor  life ;  and,  upon  her  death,  to  pay  Leonard,  1 
and  divide  the  trust  monies  unto  and  equally  between  his  Swans.  161; 
daughters,  H.  and  ./?.,  for  their  own  use  and  benefit  abso-  S.  C.  1 
lutely;  and,  in  case  of  the  death  of  them,  or  either  of  them,  ^^ils.  129. 
leaving  a  child  or  children  living,  to  apply  the  interest  for 
the  maintenance  of  the  children  till  21,  and  then,  to  divide 
the  trust  money  amongst  them;  his  will  being,  that  the  child 
or  children  should  be  respectively  entitled  to  tlie  same  share 

(/)  Laffer  v.  Edwards,  3  Mad.  210,  stated  §  136a. 


[  31S  ]        II.  22.  ii.]  AN  ORIGINAL  VIEW  [§6G3. 

his  licr  or  tlieir  mother  would  be  entitled  to  if  then  living; 
and  upon  this  ultimate  trust,  that,  in  case  of  the  death  of  his 
said  daughters,  without  leaving  issue  living  at  their  respec- 
tive death,  in  the  event  also  happening  of  all  their  children 
dying  minors,  then  to  pay  and  divide  tlie  trust  monies  among 
his  nephews  and  nieces  then  living,  for  their  own  use  and 
benefit  absolutely.  Sir  Thomas  Plumer,  M.  R.,  after  ob- 
serving that  the  fund  itselt^  and  not  merely  the  interest,  was 
given  to  the  daughters,  and  given  "absolutely,"  held,  that 
the  testator  meant,  that  if  his  daughters  survived  his  widow, 
they  should  take  the  absolute  interest;  but  that  if  they  were 
not  then  living  to  enjoy  his  property,  it  should  pass  to  their 
children,  if  they  left  any;  or,  if  they  died  without  children, 
to  his  nephews  and  nieces:  a  construction  that  reconciled 
every  ])art  of  the  will,  and  was  borne  out  by  the  expression 
of  the  testator's  intention,  that  the  children  should  take  the 
same  share  to  which  their  mother  would  have  been  entitled 
"if  then  living." 
r  349  1  Again  ;   where  a  testator  gave  to  his  two  nieces,  2000/. 

Home  v.Pil-  each,  when  and  if  they  should  attain  21,  for  their  sole  and 
hni.s,  2  M.  separate  use ;  and,  in  case  of  the  death  of  his  said  nieces,  or 
6c  K.  15,  either  of  them,  leaving  children  or  a  child,  he  gave  the  share 
or  shares  of  such  of  his  said  nieces  or  niece  so  dying,  unto 
their  or  her  respective  children  or  child.  The  Master  of  the 
Rolls  held,  that  the  interest  of  the  nieces  did  not  become 
absolute  on  their  respectively  attaining  21,  but  continued  to 
be  subject  to  an  executory  bequest  over,  in  the  event  of  their 
leaving  childr-cn  living  at  their  death.  But  Lord  Brougham 
C,  on  appeal,  reversed  that  decision,  and  held,  that  the 
nieces  took  an  absolute  interest  in  their  legacies,  on  attaining 
the  age  of  21  respectively.  "It  may  be  stated,"  said  His 
Lordship,  "  as  a  general  proposition,  that  where  the  bequest 
over  is  in  case  of  the  legatee's  death,  and  no  other  reference 
can  be  made,  the  period  taken  is  the  life  of  the  testator ;  but 
where  another  can  be  found,  that  will  be  preferred,  ['  inas- 
much as  the  maker  of  a  will  does  not  naturally  provide  for 
the  event  of  his  surviving  his  legatees,  the  selected  objects  of 
his  posthumous  arrangements.'  (2  M.  &  K.  22.)]  A  pre- 
ceding gift  for  life,  or  other  interest  less  than  the  absolute 
})roperty,  will  furnish  this  reference.  But  this  is  not  the 
only  means  of  restricting  the  generality;  and  a  direction  that 
the  gift  shall  vest  at  a  given  time,  affords  just  as  easy  and 
as  natural  a  reference  as  a  preceding  lite  interest.  Thus,  a 
bequest  to  »^.;  and,  in  case  of  Ins  death,  to  I).;  is  a  gift  ab- 
solute to  t/I.,  unless  he  dies  in  the  testator's  lifetime.  A  be- 
ipiest  to  C.  for  life  ;  and  then  to  ^J.;  and,  in  case  of  his  death, 
to  Ji.;  is  a  gift  absolute  to  ^d.,  unless  he  dies  diu'ing  C.'slife. 
A  bequest  to  ^.,  wlien  and  if  he  attain  the  age  of  21 ;  and, 
in  case  of  his  death,  to  Ii.;  is  a  gift  absolute  to  t,.2.,  unless  lie 


ir.  22.ii.]    OF  EXECUTORY  INTERESTS.  [§6G3.        [349] 

dies  under  age."  (//».  23,  24.)  '^  In  the  present  case,  no 
period  can  be  derived  from  any  prior  life  estate,  at  the  deter- 
mination of  wiiich  the  gift  over  is  to  take  ctfect.  But  the 
whole  clause  taken  together  furnislies  a  period  for  the  re- 
striction, at  once  natural,  and  obvious,  and  consistent  with 
the  plain  meaning  of  the  testator,  and  peculiarly  agreeable 
to  the  frame  of  ilie  bequest.  He  first  gives  his  nieces  the 
monies  when  and  if  they  shall  attain  21;  at  the  age  of  ma- 
jority, therefore,  the  legacies  vest ;  and,  as  far  as  this  branch 

of  the  clause  goes,  vest  absolutely If  we  read  the        [  350  ] 

latter  part  as  contemplating  a  dying  at  any  time,  and  as  con- 
verting the  legatee's  interest,  from  an  absolute  interest  in 
the  capital  sum,  into  a  life  annuity,  in  the  event  of  her  leav- 
ing a  child  at  her  death  ;  we  entirely  destroy  the  first  part  of 
the  clause,  which  provides  for  the  interest  vesting  at  21. 
According  to  this  construction,  she  has  attained  her  age  of 
21  in  vain  [as  regards  the  capital]:  for,  at  that  period  so 
anxiously  pointed  out  by  the  will,  as  the  time  when  she  was 
to  receive  the  sum  of  2000/., she  only  acquires  the  chance  of 
her  will  operating  upon  it  in  case  she  dies  childless.  During 
all  the  days  of  her  life,  she  has  no  more  control  over  it  after 
21  than  she  had  before.  It  appears  quite  clear  to  me  that  See  §223-6. 
the  other  construction  is  the  sound  one.  Having  first  provi- 
ded for  the  legacy  vesting  when  the  legatee  is  of  age,  and 
secured  it  against  the  interference  of  others,  in  the  event  of 
marriage  ;  the  testator  provides  for  the  case  of  the  legatee 
dying  under  age  and  leaving  a  child  or  children :  in  that 
case,  they  take  their  mother's  legacy,  because  she  did  not 
live  till  it  vested  in  her.  {lb.  25,  26.) 

And  so  where  a  testator  bequeathed  his  personal  estate  to  Monteith  v. 
his  brothers  and  sisters  absolutely,  and  declared,  that  if  any  ^'■'i^"'^^"' 
of  them  should  die  in  his  lifetime,  or  afterwards,  without  ~  ^''-een,  719. 
leaving  issue  him  surviving,  his  share  should  go  amongst 
the  survivors;  and  that  if  any  should  die  in  his  lifetime,  or 
afterwards,  leaving  issue  him  surviving,  his  share  should  be 
divided  among  his  issue ;  such  child  or  children  taking  their 
parents'  share.     And  he  declared  it  to  be  his  will  that  none 
of  the  legatees  should  be  entitled  to  any  bequest  until  they 
attained  21.     The  brothers  and  sisters  claimed  the  absolute 
interest.     The  child  of  one  of  them  insisted  that  they  took  a 
life  estate  only.    Lord  Langdale,  M.  R.,  held,  that  each  legatee 
took  an  absolute  vested  interest  on  attaining  21,  and  the  limi- 
tation to  the  issue  was  to  take  etlect  only  in  the  event  of  the 
legatee  dying  under  21. — There  was  in  effect  a  limitation  to  Observation 
the  brothers  and  sisters,  if  and  when  they  attained  21;  follow-  on  Montieih] 
ed  by  two  alternative  limitations;  namely,  a  limitation  to  the  \. Nicholson. 
survivors,  if  one  or  more  of  the  brothers  and  sisters  should  See  §  128- 
die  under  21,  without  leaving  issue,  or,  to  the  issue  of  him  136a. 
her  or  them  so  dying,  if  he,  she,  or  they  should  leave  issue.         [   351  ] 
Vol.  II.— 36 


[  351  ]        II.  23.  ii.]  AN  ORIGINAL  VIEW         [§664—666. 

YI.  The  VI.  It  would  seem  thai  tliis  qnalifyiug  construe-  664 

same  con-      tinu  is  equally  applicable  to  real  estate, 
stniction  '1  here  is  however  an  exception  to  this  :  for,  t'"'  it  665 

seems  appli-  soon  s  that  where  a  testator  devises  an  estate  tail 
cable  to  real  ^q  y,    person;  and   if  he  died,   over;   the    words  'without 
estate.  issue'   are   supplied,  to  render  it  correspondent  with  that 

Exception,  estate ;"(j^)  a  construction  which  does  not  militate  against 
the  application  of  the  rules  above  laid  down  to  real  estate, 
but  is  merely  an  illustration  of  the  rule  stated  in  the  twenty- 
first  chapter,  that  a  limitation  shall,  if  possible,  be  construed 
a  remainder,  rather  than  an  alternative  limitation. 
Decision  to        It  has  been  decided,  indeed,  that  the  rules  above  666 

the  conirarv.  stated   do   not  apply   to   real  estate,   where   the 

'  words,  "in  case  of  the  death,"  follow  an  indefinite  devise. 
But  perhaps  But  perhaps  that  decision  may  be  thought  to  have  been 
that  decision  based  upon  reasons  which  do  not  constitute  any  solid  dis- 
is  question-  tinction  in  this  respect  between  real  and  personal  estate;  and 
able.  at  any  rate  they  do  not  apply  to  wills  which  have  been 

Atall events,  niade  since  the  beginning  of  the  year  1838,  and  which  are 
it  has  no  ap-  governed  by  the  stat.  1  Vict.  c.  26,  s.  28. 
plication  to  jj^  ^^^^^  ^^^^^  a^  testator  gave  one  third  of  his  real  estate,  to 
devises  made  j^-g  gigters,  share  and  share  alike;  and,  in  case  of  their 
since  1838.  ^g^^^jsp^  [^q  devised  their  respective  shares  or  proportions  to 
JBcwes  V.  |3g  equally  divided  amongst  their  children,  or  their  lawful 
Scowcroft,2  ^g-j.g^  Aldcrson,  B.,  held,  that  the  sisters  took  estates  for 
You.  &  Coll.  ii^-g  Qj^^y^  ^y-ji^  remainder  to  their  children,  as  tenants  in 
^^^'  common  in  fee.     It  was  argued,  that  the  limitation  to  the 

children  was  an  alternative,  to  take  etfect  in  case  of  the 
demise  of  the  sisters  in  the  lifetime  of  the  testator.  But  the 
learned  Judge  said,  that  many  cases  to  this  effect  were 
cited ;  but  they  were  all  cases  of  personal  property,  and  not 
of  devises  of  land.  That  there  was  an  obvious  distinction 
between  the  tv/o:  a  bequest  of  personal  estate  to  ji.  gives 
him  the  whole  interest.  A  devise  of  land  to  ^.  gives  him 
r  352  1  only  a  life  interest.  That,  in  the  former  case,  therefore,  the 
words  in  case  of  their  demise  preceding  a  bequest  over,  can- 
not well  have  their  proper  etfect,  except  by  considering 
them  as  applicable  to  a  bequest  over  as  a  substitution  for  the 
previous  gift,  in  case  the  party  to  whom  it  is  given  should 
not  survive  the  testator.  But  that,  in  the  case  of  land,  the 
most  natural  meaning  of  the  words  (which  seemed  to  him  to 
be  after  their  demise)  may  very  reasonably  have  its  full 
effect. 
Observations  With  the  utmost  deference  for  so  great  an  authority,  it 
on  Bowes  V.  may  perhaps  be  fairly  questioned,  whether  the  distinction 
Scowcroft.  taken  by  the  learned  Judge  is  altogether  satisfactory.  There 
is  no  doubt  but  that  the  Court  is  only  desirous  of  giving 

{g)  2  Jarm.  Pow.  on  Dev.  764 ;  and  ^non.,  1  And.  33,  there  cited. 


II.  22.ii.]      OF  EXECUTORY  INTERESTS.  [§666.        [352] 

efTect  to  the  real  intention  of  the  testator,  in  regard  to  the 
words  in  question;  and  that  if  it  appeared  clear,  from  any 
other  expressions,  that  the  intention  was,  to  guard  against 
lapse,  that  intention  would  be  edectuatcd,  as  much  in  regard 
to  real   estate,  as  to  personal.     The  only  question,  then, 
seems  to  be,  whether  there  is  any  distinction  between  real 
and  personal  estate  in  point  of  intention?.  But  the  distinc- 
tion adverted  to  by  the  learned  Judge  is  one  which  arises, 
as  was  urged  at  the  bar,  from  construction  of  law,  and  is  at 
variance  with  the  real  intention,  and  is  abolished  by  the 
Statute  1  Vict.  c.  26,  s.  28,  on  that  account,  so  that  a  devise 
of  land  to  Jl.  indefinitely,  will  now  pass  a  fee,  "  unless  a 
contrary  intention  appear  by  the  will."     The  learned  Judge 
indeed  did  not  allude  to  it  as  atlbrding  any  clue  to  the  inten- 
tion, but  in  relation  to  the  ellect  which  the  words  in  question 
have  upon  the  previous  disposition.     Now  with  respect  to 
that,  it  may  be  replied,  that  the  cases  of  personal  property 
have  been  expressly  decided  upon  what  has  been  considered 
the  grammatical  meaning  of  the  words  "in  case  of"  &c.;  as 
importing  a  contingency  instead  of  an  event  certain,  and 
not  with  any  regard  to  the  quantity  of  the  preceding  in- 
terest.    Indeed  the  bequest  to  A.  gives  the  whole  interest, 
only  because  it  is  not  restricted  by  any  subsequent  words. 
If  the  testator  adds  "and  after  the  demise  of  •.?.,  then,  to 
the  children  of  Jl.  absolutely,"  those  words  would  have 
their  proper  effect,  by  restricting  Jl.  to  a  life  interest.     And 
so,  if  the  subsequent  limitation  had  been  introduced  by  the 
words  "and  in  case"  &c.,  instead  of  "and  after,"  &c,,  the         [  353  ] 
elfect  would  have  been  the  same,  if  it  had  been  considered 
that  those  words  did  not  properly  import  a  contingency.    So 
that  the  quantity  of  the  previous  interest  is,  in  one  sense, 
dependent  upon  the  intrinsic  meaning  of  the  words  "and  in 
case"  &c.,  introducing  the  subsequent  limitation,  instead  of 
the  meaning  or  operation  of  those  words  being  dependent 
upon  the  quantity  of  the  preceding  interest.     In  many  cases, 
if  not  in  all,  where  the  words  are,  "and  in  case"  &c.,  and 
not  "or  in  case"  &c.,  or  "but  in  case"  Sec,  perhaps  the 
real  meaning  is   that  which  is  not  the  grammatical  one. 
And,  so  far  as  the  present  decision  is  concerned,  such  would 
seem  to  be  the  case.     For,  if  the  testator  had  meant  to  refer 
to  the  event  of  lapse,  he  would  have  said  "in  case  of  the 
demise  of  cither  or  both  of  them:"  for,  it  was  not  a  very 
improbable  event  that  one  should  die  in  his  lifetime ;  but 
that  both  should  die  in  his  lifetime  was  very  improbable; 
and  yet,  that  is  the  event  he  contemplated,  if  the  words 
refer  to  lapse.     On  this  ground,  the  decision  itself  in  this 
case  appears  to  be  perfectly  sound:  but  yet,  notwithstanding 
this  decision,  it  may  not  be  considered  a  settled  point,  that 
there  is  a  distinction  in  this  respect  between  real  and  per- 
sonal estate,  even  as  regards  wills  made  before  the  year  1838. 


[   354   ]         II.  23.J 


AN  ORIGINAL  VIEW 


[§66 


CHAPTER  THE  TWENTY-THIRD. 

CERTAIN  CASES  OF  VOID  CONDITIONAL  LIMITATIONS,  DEPEND- 
ING ON  THE  NON-DISPOSAL  OP  PROPERTY,  DISTINGUISHED 
FROM  LIMITATIONS  IN  DEFAULT  OP  THE  EXERCISE  OF  A 
POWER. 


Ross  V. 
Ross,  1  Jac, 
&  Walk. 
158. 
See  also 
other  cases 
cited  in  the 
Reporter's 
note. 


[  355  ] 


Cuthbert  v. 
Furrier, 
Jac.  415. 


If  property  is  limited  to  such  uses  as  a  person  667 

shall  appoint,  and,  in  default  of  appointment,  to 
other  uses,  this,  as  it  is  well  known,  is  good  as  a  power  of 
appointment,  with  a  limitation  in  default  of  the  exercise  of 
the  power. 

But,  if  property  is  limited  directly  to,  or  to  the  use  of,  a 
person,  instead  of  being  limited  to  uses  to  be  appointed  by 
the  exercise  of  a  power;  it  cannot  be  limited  over  in  the 
event  of  such  person  not  exercising  that  power  over  it 
with  Avhich  he  is  clothed  by  the  law  itself,  as  an  incident  to 
property. 

A  testator  bequeathed  a  sum  of  money  to  t/5.,  to  be  paid 
at  25,  or  between  21  and  25,  if  the  executors  should  think 
proper ;  and  directed  maintenance  thereout  in  the  meantime; 
and  that  in  case  ./?.  should  not  receive,  or  dispose  of,  by  will 
or  otherwise  in  his  lifetime,  the  aforesaid  sum,  then,  the  said 
sum  should  return,  and  be  paid  and  payable  to  another 
person.  ^'2.  attained  25,  and  died.  He  did  not  receive  the 
legacy;  but  the  amount  had  been  carried  to  his  separate 
account,  in  a  suit  to  which  he  was  not  a  party.  Sir  Thomas 
Plumer,  M.  R.,  held,  that  the  limitation  over  was  void.  He 
observed,  that  the  case  dhfered  from  a  power,  and  a  re- 
mainder over  in  default  of  its  exercise:  the  right  of  dispos- 
ing of  the  legacy  was  given  him  not  in  ierminis,  but  as  a 
consequence  of  property:  it  was  not  given  as  a  power,  but 
followed  from  the  property  being  his.  That  the  testator 
assumed  that  he  would  have  a  right  to  it  at  25  ;  and  if  ab- 
solute property  be  given  to  a  person,  it  cannot  be  subjected, 
for  his  life,  to  a  proviso,  that  if  he  does  not  spend  it,  his  in- 
terest shall  cease.  One  of  the  consequences  would  be,  that 
if  he  had  not  spent  it,  and  were  to  die  indebted  to  any 
amount,  his  creditors  would  be  excluded  from  it. 

And  where  a  gift  was  made  by  will  to  the  testator's 
natural  son,  to  be  paid  to  him  at  21,  with  a  bequest  over  in 
the  event  of  his  dying  under  that  age,  or  afterwards,  with- 
out lawful  heirs,  and  intestate;  it  was  held,  that  the  limita- 
tion over  was  not  good,  on  the  ground  that  a  person,  after 
investing  another  with  the  absolute  property,  cannot  give  it 


II.  24.]         OF  EXECUTORY  INTERESTS.  [§rj68.        [  355  ] 

over  in  the  event  of  the  legatee's  not  exercising  that  power 
which  is  incident  to  and  a  consequence  of  property.  'J'hc 
case  of  Boss  v.  Iioss  was  referred  to  by  the  iSlasler  of  the 
Rolls,  as  decisive  of  the  point. 


CHAPTER  THE  TWENTY-FOURTH.  [  356  ] 

LIMITATIONS    orERATING    DIFFEnENTLY,    IN    REGARD    TO       J.  An  intcr- 
ANOTHER  LIMITATION,  IN  DIFFERENT  EVENTS,  cst  limited  aS 

an  altorna- 
668  I.  An   interest  may  be  specially  limited  to  fake  tive  or  as  a 

effect  either  as  an  alternative,  in  case  a  prior  in-  remainder  or 
terest  should  never  vest,  or  as  a  remainder  or  (juasi  remain-  qynsi  re- 

der  after  it.     (See  §  128,  159 — 16Sb.)  maindcr. 

66Sa  II.  i\nd  even  where  an  interest  might  appear,  II.  An  infer- 

andca-     at  first  sight,  to  be  a  mere  alternative,  it  shall  be  est  shall,  if 
ses  sta-     construed  as  a  remainder  or  quasi  remainder,  if  possible,  be 
ted  §         possible,  as  well  as  an  alternative.     (See  §  128 —  construed  as 
545-6.      136a,  159 — IGSb.)  a  remainder 

Thus,  where  a  testator  devised  to  two  trustees  "^^  V^nsi  re- 
and  their  heirs,  to  receive  the  rents  until  B.  should  attain  21;  "^^'nder,  as 
and  \{  B.  should  attain  21  or  have  issue,  then  to  B.  and  the  "j      as  <in 
heirs  of  his  body,  but  if  Z?.  should  happen  to  die  before  21  and  ^'^c'"^i''^'<^- 
without  issue,  remainder  over;  B.  attained  his  age  of  21,  ^''^^'-''^s- 
and  afterwards  died  without  issue.     Lord  Hardwicke  de-  ^^^^  ^*^ 
creed  that  the  limitation  over  should  take  effect.     The  great  y      oj? 
authority  upon  this  subject  observes,  =*  that  Lord  Hardwicke  g     *  i/  ' 
construed  the  word  ''and,"  in  the  limitation  over,  as  "or." (a)  ,^0?//^^//  v 
But,  in   reality  it  would  clearly  appear  that   His   Lordship  Stomhouse 
regarded  the  limitation  over  as  both  a  remainder  and  an  2  Ves  610' 
alternative ;    and  he  does  not  appear  to   have  construed  as  stated 
"and  "  as  "or,"  but  to  have  supplied  an  ellipsis,  so  as  to  Fearnc  507. 
make  the  limitation  over  capable  of  taking  effect  on  a  fiiilure 
of  issue  of  B.  after  21,  and  yet,  at  the  same  time,  to  have 
prevented  the   limitation  over   from  taking   effect,  to   the 
exclusion  of  ^.'s  issue,  if  B.  had  died  under  21    leaving 
issue.     His  words  are  these:  "  Having  first  given  the  whole 
legal  fee  to  trustees  and  their  heirs,  he  did  not  intend  either 
of  these  two  children  should  have  anything  vested  till  21, 
or  the  having  issue;  and  then  to  have  an  estate  tail:  con-        [  357  ] 
scquently,  as  soon  as  Jo/ui  [B.]  attained  21,  or  had  issue, 
though  he  died  before  21,  that  defeated  and  determined  the 
estate  in  law  given  to  the  trustees  and  vested  a  fee  tail  in 

(a)  Fearne,  506. 


[  357  J        II.  24.]  AN  ORIGINAL  VIEW  [§669. 

him.  He  did  attain  21  ;  and  therefore  had  an  entail  as  he 
would  if  he  died  before  21,  but  had  issue.  Then  the  con- 
struction could  not  be,  as  insisted  for  the  plaintiff,  as  with  a 
double  aspect;  if  he  attained  21,  then  to  vest  in  him  an 
estate ;  or,  if  he  died  before,  leaving  issue,  then  to  give  it  to 
that  issue:  that  is  not  the  construction:  but  it  is,  to  give  an 
estate  tail  in  either  event.  .  .  .  There  is  a  plain  natural  con- 
struction upon  these  words:  viz.  if  the  said  John  [^.] 
shall  happen  to  die  before  21,  and  also  \or,  and  if  he]  shall 
happen  to  die  without  issue:  which  construction  plainly 
makes  the  dying  without  issue  to  go  through  the  whole,  and 
fully  answers  the  intent." — If  "and"  had  been  construed 
"  or,"  the  dying  without  issue  would  have  had  no  refer- 
ence to  a  dying  under  21;  and  if  B.  had  died  under  21, 
leaving  issue,  the  estate  must  have  gone  over,  to  the  exclu- 
sion of  such  issue,  contrary  to  the  express  words,  and  the 
clear  intent,  as  Lord  Hardwicke  thought,  of  the  testator. 
Dot  d.  The  case  of  Doe  d.  Usher  v.  Jessep  may  at  first  sight  ap- 

Vshtr  V.  pear  to  clash  with  Brownsioord  v.  Edwards.  In  Doe  d. 
Jessep,  12  Usher  v.  Jessep,  Ji.  devised  to  trustees  and  their  heirs  in 
East,  288,  trust  for  his  natural  son  J.  and  the  heirs  of  his  body ;  and  if 
distinguished/^  should  die  before  he  attained  his  age  of  21  years,  and 
{xomBrown-  without  issue,  then  over.  J.  attained  his  majority,  but  died 
sword  V.  Ed-  without  issue.  The  case  of  Broivnsivord  v,  Edwards  was 
wards.  ^i^gj  .  t^^^^  ^^^q  Court  refused  to  give  effect  to  the  devise  over. 

The  fact  is,  that  this  case  was  essentially  dissimilar.  The 
language  of  the  limitation  over  was  indeed  perfectly  similar 
to  that  of  the  limitation  over  in  Broicnsword  v.  Edwards. 
But  the  prior  interest  in  Doe  v.  Jessep  was  a  vested  interest, 
whereas  the  prior  interest  in  Brownsword  v.  Edwards  was 
See  §  148-9,  contingent  upon  attaining  21,  or  having  issue.  And  hence 
157.  the  limitation  over  in  Doe  v.  Jessep  was  a  conditional  limita- 

tion. 
III.  Every  III. ''Every  remainder  or  ^Mfm  remainder,  with-  669 

remainder  or  out  being  specially  limited  for  that  purpose,  has  the 
quasi  re-  effect  of  an  alternative  limitation,  in  case  the  preceding  in- 
[  358  ]  terest  never  vests  at  all,  whether  the  failure  of  such  preced- 
mainder  has  ing  interest  arises  from  the  death  of  the  prior  taker  in  the 
the  effect  of  lifetime  of  the  testator,  or  from  the  failure  of  the  contingency 
an  a  terna-  on  which  it  depended  ;  unless  such  contingency,  either  ac- 
tive limita-  cording  to  the  grammatical  construction  or  the  apparent  in- 
lon,  in  case  tention,  extends  to  the  remainder  or  quasi  remainder  also;(6) 

(h)  Sec  Chatteris  v.  Young,  6  Mad.  30.  See  also  Horton  v.  WhittaJccr,  1 
Durn.  &  East,  346;  Davis  v.  Norton,  2  P.  W.  390;  and  Doe  d.  Watson  v. 
Shipphard,  Dougl.  Rep.  7.5 ;  Scaltcrwood  v.  Edge,  1  Salk.  229 ;  and  Lord 
Hardwicke's  remarks  in  Avelyn  v.  Ward,  1  Ves.  420  ;  as  stated,  Fearne,  235 — 
237;  and  the  limitation  to  V.  in  Vachel  v.  Vachel  and  Lernmon,  I  Chan.  Cas. 
129,  as  stated,  Fearne,  404. 


II.  24.]        OF  EXECUTORY  INTERESTS.  [§6G9.        [  358  ] 

and  niitcss  there  is  some  other  condition  wliicli  consti-  ing  interest 
stitutcs  a  prerecjuisile  to  the  vesting  of  the  remainder  or  quasi  never  vests, 
remainder,  and  such  condition  is  not  fulfilled.  Sec  §  159, 

In  the  following  case  the  condition  extended  to  the  re-  1[''|'  l'^8- 
mainder.  1-JOa.  \ 

A  testator  devised  real  estates,  upon  trust  tliat  his  daugh-  Toldervy  v. 
ter  M.  should,  until  21,  if  sole  and  unmarried,  receive  there-  Colt,  1  You. 
out,  an  annuity  of  60/.,  and  that  she  should  thereafter,  and  &  Coll.  621. 
until  31,  if  sole  and  unmarried,  receive  a  further  annuity  of 
40/.;  but,  in  case  ids  daugliter  should  marry  witliout  the 
consent  of  his  trustees,  then,  she  should  receive  only  an  an- 
miity  of  50/.,  and  the  said  estates  should,  immediately  upon 
such  marriage,  be  in  trust  for  the  children  of  M.,  as  tenants 
in  common  in  tail ;  and,  for  default  of  such  issue,  in  trust 
for  the  testator's  sister,  S. :  provided  that,  if  M.  should  marry 
with  the  consent  of  the  trustees,  it  should  be  lawful  for  them 
to  settle  the  estates  upon  il/.  and  her  husband,  for  their  joint 
Hves,  and  the  life  of  the  survivor,  with  remainder  to  the  issue 
of  M.  &.C.  M.  married  with  consent,  and  died  without  issue. 
The  Court,  on  a  reliearing,  reversing  its  former  decision, 
held,  that  as  M.  married  with  consent,  the  remainder  to  S. 
failed,  though  M.  died  without  issue.  The  Lord  Chief  Baron 
considered  the  words,  "and  for  default  of  such  issue,"  as 
referring  to  the  issue  of  the  children,  and  the  limitation  to 
iS*.,  as  a  remainder  depending  on  an  estate  tail  (1  Y.  &:  C.  [  359  ] 
636-7);  and  he  was  of  opinion  that  the  condition  upon  which 
the  estate  tail  was  limited,  clearly  applied  to  the  limitation 
to  S.,  upon  the  words  of  the  instrument  as  they  stood  {lb. 
639);  and  that  the  Court  could  not,  by  anything  but  a  prob- 
able conjecture,  which  it  had  no  right  to  act  upon,  insert  the 
proviso  immediately  before  the  limitation  over  of  the  re- 
mainder to  the  sisters  {Ih.  642).  There  was  one  case  in 
which  the  testator  had  clearly  omitted  to  make  any  provi- 
sion for  his  sisters,  namely,  in  the  event  of  the  daughter 
never  marrying  at  all.  And  His  Lordship  asked,  why  the 
other  case  might  not  be  ranged  under  the  same  class,  either 
of  a  design  to  die  intestate,  or  of  a  casus  omissus  {lb.  641). 

Immediately  after  stating  his  opinion  to  be  that  the  con-  Observations 
dition  extended  to  the  limitation  to  »S'.,  His  Lordship  added  on  Toldervy 
another  reason  for  the  failure  of  that  limitation,  apparently  v.  Colt. 
treating  the  failure  thereof  as  a  necessary  consequence  of  the 
total  failure  of  the  estate   tail  on  which  it  depended;  but 
His  Lordship's  words  are  ambiguous,  and  probably  were 
either  inaccurately  reported,  or  not  intended  to  convey  the 
meaning  they  apparently  convey.     Admitting  that  the  limi- 
tation  to  S.  is  not  simply  an  alternative,  amounting  to  a 
limitation  to  S.  for  default  of  such  children,  but  a  remainder, 
to  lake  etfect  on  the  expiration  of  the  preceding  estate  tail; 
yet  we  have  seen  that  every  remamder  lias  the  etlect  of  an  See  §  669. 
alternative  limitation,  in  case  the  preceding  interest  never 


[  359  ]        II.  24.]  AN  ORIGINAL  VIEW    [§6G9a— G70*. 

takes  effect  at  all,  unless,  as  in  this  case,  the  contingency  on 
which  the  preceding  interest  depends,  atlects  the  remainder. 
— In  this  case,  there  was,  first,  in  the  event  of  tlie  daughter 
See  §117-     marrying   without   consent,   the  limitation   of  a  springing 
12ra,  159.     interest  to  the  daughter's  children  in  tail,  with  a  remainder 
to  S.,  that  is,  a  remainder  in  relation  to  the  preceding  limi- 
tation, but  a  limitation  of  a  springing  interest,  when  viewed 
in  relation  to  the  absence  of  a  present  particular  estate. 
But,  secondly,  in  the  event  of  the  daughter  marrying  with 
See  §  128-     consent,  there  was  an  alternative  limitation  to  her  and  her 
136a.  husband  for  their  joint  lives  &c.     As  soon  as  the  daughter 

married  with  consent,  the  first  two  limitations  became  inca- 
pable of  taking  effect ;  and  the  third  limitation  at  once  took 
[  360  ]  effect,  as  an  alternative  for  them,  in  consequence  of  the  hap- 
pening of  the  second-named  event,  instead  of  its  opposite, 
the  first-named  event. 
Conse-  As  a  consequence  of  the  rule  last  stated,  it  fol-         669a 

qiicnceof  the  lows,  that  '^  where  a  testator,  after  creating  contin- 
above  rule,     gem  estates  tail  in  real  property,  with  a  remainder  over, 
as  regards      directs,  that  personal  estate  shall  go  to  the  persons  entitled 
chattels  ^q  {jjg  j.q^\  estate,  as  far  as  the  rules  of  law  or  equity  will 

which  are  to  permit;  in  such  case,  as  the  limitation  in  remainder  is  ca- 
gotothe  per- p^l^lg  ^^  operating  as  an  alternative,  as  regards  the  real 
sons  entitled  ^gj^^jg^  jj^  ^.^gg  t|-,Q  contingent  estates  tail  never  vest;  so  the 
^Tl  d^  ^  ^^  limitation  over  shall  also  enure,  in  that  event,  as  an  alterna- 
en  ai  e  .         ^.^^  limitation  of  the  personal  estate  in  favour  of  the  indi- 
vidual entitled   to   the   real  property  under   the   same  ;(c) 
though  it  could  not  pass  the  personal  estate  to  him,  if  the 
contingent  estates  tail  had  become  vested,  and  the  remain- 
der were  consequently  to  take  effect,  in  regard  to  the  real 
estate,  as  a  remainder;  because  personal  estate,  as  we  shall 
See  §  719.     see  hereafter,  cannot  be  limited  in  remainder  after  an  inde- 
finite failure  of  issue. 
Instance  of         Where  a  prior  interest  vests  in  the  first  instance,  670 

remainder      or  afterwards  becomes  vested  in  right,  a  subsequent 
taking  effect  limitation  in  remainder  takes  efiect  even  though  such  prior 
as  such,         interest   never   becomes   vested   in  possession.     But   then, 
though  talc-    gijeii   subsequent  limitation   takes  effect,  as   a   remainder, 
ing  as  an  al-  ^f^^^  ^|,g  p,-ior  interest  has  vested,  in  interest,  but  has  regu- 
ternativcas    ]arly  expired  before  it  could  become  vested  in  possession: 
regards  the    jj  jQgs  not  take  effect,  as  an  alternative  limitation,  simply 
possession.     ^^  ^  substitute  for  a  prior  interest  which  has  never  taken 
effect  at  all;  for  the  prior  interest,  according  to  the  hypo- 
thesis, has  vested  in  right  or  interest,  though  not 
in  possession.     An  interest  may  be  limited  to  take         670* 
effect  either  as  a  remainder  after  a  preceding  in- 


(c)  See  Gower  v.  Grosvenor,  stated,  Fearne,  521-2, 


II.  2  l.J  OF    EXECUTORY  INTERESTS.  [§G70a— f;72.        [  3G0  ] 

tercst,  or  as  a  conditional  limitation,  in  defeasance  llieieof. 
(See  §  240.) 

670a  IV.  '•An  interest  may  be  specially  limited  to  IV.  An  in- 

take effect  cither  as  an  alternative,  in  case  a  pre-  'crest  may 

ceding  interest  should  never  vest  at  all,  or  as  an  interest  bclimited  to 

under  a  conditional  limitation,  in  defeasance  thereof  in  a  par-  ^?'^^  cfTect 

ticnlar  event. (^Z)     (See  ^  128— 130',  148—158.)  ^\^^'^^  ^^  ^" 

^    '      ^  ^  ^  alternative 

or  as  an  interest  under  a  conditional  limitation. 

671  V.  But 'a  mere  conditional  limitation  will  have        [  361  ] 
the  ctl'ect  of  an  alternative  disposition,  if  the  prior  V.  A  mere 

interest  entirely  fails, (<?)  unless  the  condition  annexed  to  the  conditional 
conditional  limitation  is  not   fulfilled,  and  it  does  not  ap-  limitation 
pear  to  have  been  intended  that  tlie  subsequent  limitation  ^^'^1  h^vc  the 
should  take  eli'ect  except  upon  the  fulfilment  of  the  condi-  cficct  of  an 
I'lQXi^  alternative, 

671a  '"And  a  limitation  of  a  springing  interest  of  the  1^        1""'°^ 

seventh  kind  may  have  a  similar  effect.f  /)  (See  •"^^'''^^^ 
§117-I27a.)  "^raT/w-11 

672  The  reason  why  remainders,  conditional  limita-  I'n^ '".°rl' 

J  ,.     .,   ,.-'  c        .    '.       .  ,.  ,  .    a  limitation 

tions,  and  limitations  of  springing  interests  ot  this  „r„  „n,-;nn. 

1  ■       1  II  ^   ^  r  .^  ~-'        Y  .  ,.        .  '^1    "■   o|)ling» 

kind,  arc  usually  capable  ot  operating  as  alternative  limita-  j,^„  interest 
tions  seems  to  be  this:  that  where  an  interest  is  postponed  so  oHhe  scv- 
as  to  take  effect  by  way  of  remainder,  conditional  limita-  enth  kind, 
tion,  or  springing  interest,  this  seldom  arises  from  any  other  principle  of 
motive  than  a  desire  of  benefiting  the  person  to  whom  the  (I^q  j]jij.j  aj-,j 
prior  interest  is  limited  ;  and  therefore,  where  he  cannot  take  fiftj^  rules. 
at  all,  through  the  failure  of  the  contingency  on  which  his 
interest  depends,  and  the  reason  for  postponing  the  ulterior 
interest  fails  on  that  account,  such  ulterior  limitation,  whether 
by  way  of  remainder,  conditional  limitation,  or  limitation 
of  a  springing  interest,  is  allowed  to  take  effect  immediately 
as  an  alternative  limitation. 

A  testator,  after  providing  for  such  children  as  he  might  Mcadou-s  v. 
leave, procedcd  thus:  but  in  case  all  the  said  children  shall  Parry,  1  V. 
die  before  21,  then,  I  give  all  such  residue  to  my  wife.     Sir  «S>;  B.  124. 
W.  Grant,  INI.  R.,  held  that  the  bequest  over  took  effect, 
though  the  testator  never  had  any  child. 

So  where  a  testatrix  directed,  that  in  case  she  should  have  ^furray  v. 
but  one  child  living  at  the  time  of  her  decease,  or  all  but  •^'^"^^S  2  V. 

&  13.  313. 

{d)  Sec  limitation  to  T.  in  Vachd  v.  J'achel  and  Lcmmon,  1  Chanc.  Cos. 
12«J,  as  stated,  Fcarnc,  401;  and  Masscnbvrgh  v.  Ash,  1  Vern.  304,  as  stated, 
Fcarne,  518. 

(e)  Jones  V.  Westconih,  1  Eq.  Abr.  245  ;  Andrews  v.  Fulham,  1  \^'ils.  107; 
Gidlivcr  v.  Wicketf,  1  Wils,  105  ;  and  Lord  Ilardwicke's  observations  in  Avchjn 
V.  Ward,  1  Vcs.  420  ;  as  stated,  Fearnc,  510 — 513.     Doe  d.  Herbert  v.  Sclby, 

2  Bar.  &  Crcs.  926. 

(/)  Jlvelyny.  Ward,  1  Vcs.  420,  as  stated,  Fcarnc,  513. 
Vol.  II.— 37 


[  3G1  ]        11.2  1.]  AN  ORIGINAL  VIEW  [§672 

Olio  sliould  die  under  21  and  unmarried,  then,  her  trustees 
should  stand  possessed  of  the  residue   in  trust  for  another 
family.     The  testatrix  never  had  a  child.     Sir  W.  Grant,  M. 
R.,  held,  that  the  bequest  over  took  effect ;  observing,  that  if 
[  362  ]        the  subject  admitted  of  gradation,  it  might  be  said,  that  the 
condition  was  more  than  fulfilled;  the  circumstance  which 
was  to  exclude  the  residuary  legatee  being  the  existence  of 
more  than  one.     (2  V.  &  B.  320.)     But  that  even  if  the 
words  imported,  if  she  sliould  have  one  child  living  at  her 
death,  then,  the  case  fell  within  Jones  v.  IVcstconib:  the 
limitation  over  depended  on  the  failure  of  that  which  prece- 
ded it,  but  that  the  testatrix  had  not  taken  in  all  the  modes 
by  which  it  might  fail.  {lb.  322.) 
Macldnnon        And  wlicre  a  testatrix  gave  the  residue  of  her  personal 
V.  ScwcU,  2  estate  to  her  daughter  C  D.,  for  life;  and,  after  the  decease 
M.  &  K.         of  C.  IJ.,  to  her  grand-daughter,  C.  L.  B.,  if  she  should  sur- 
202.  vive  her  said  mother,  and  live  to  attain  21;  with  a  direction 

for  her  maintenance  in  the  meantime.  And  in  case  the  said 
C.  L.  D.  should  not  survive  her  said  mother,  and  live  to 
attain  21,  then,  to  such  other  child  or  children  of  her  said 
daughter  C.  D.,  as  should  be  living  at  the  time  of  her  said 
daughter's  decease,  to  be  paid  to  them  when  and  as  they  should 
have  attained  21;  with  a  direction  for  their  maintenance. 
And,  in  case  of  the  death  of  any  of  them  [i.  e.,  such  other 
children  as  should,  be  living  at  C.  Z^.'s  decease]  before  such 
age,  then,  the  share  or  shares  of  such  child  or  children  so 
dying,  to  go  to  llie  survivors  or  survivor  of  them,  on  their  or 
his  coming  of  age.  And  if  all  such  other  children  of  her 
said  daughter  C.  D.  should  happen  to  die  before  attainment 
of  the  said  age,  then,  to  her  daughter  L.  M.  C.  L.  B.  died 
in  the  lifetime  of  the  testatrix's  daughter  C.  B.;  and  the  only 
other  child  J.  Z).,also  died  in  the  lifetime  of  C  Z>.,  after 
having  attained  21.  Sir  L.  Shadwell,  V.  C.,and  afterwards 
Lord  Brougham,  C,  on  appeal,  held,  that  the  bequest  over 
to  L.  M.  took  effect.  His  Lordship  observed,  that  the  Res- 
pondent did  not  read  the  words  as  if  they  were  "  all  the 
other  children  of  C'«ro/me,"  but  took  them  literally  as  they 
stand,  "all  such  other  children  of  Caroline,^'  and  contended 
that  they  described  one  class  of  the  children  of  Caroline, 
namely,  those  who  survived  her.  That  as  none  survived 
her,  and  therefore  that  class  never  came  into  existence, 
(2  M.  &  K.  210),  there  seemed  nothing  inconsistent  with  the 
general  intent  in  giving  effect  to  the  executory  limitation, 
by  treating  it  as  a  gift  over  upon  the  removal  out  of  the 
f  363  ]  '^^^y  °^  ^''°  preceding  interests,  in  whatever  manner  that 
removal  was  effected  ;  whether  by  persons  coming  into  exist- 
ence, so  as  to  make  the  interests  vest,  and  their  dying  under 
21,  so  as  again  to  devest  their  estates;  or  by  their  never 
coming  into  existence,  and  thus  never  taking  the  interests  at 


II.  21.1         OK  EXECUTORY  INTERESTS.  [§<i72.         [  3G3  ] 

all.  {Ih.  '313.)  That  if  indeed  anything  had  turned  on  the 
circumstance  of  their  being  surviving;  children  of  Caroline^ 
the  reasoning  would  have  failed  (/Z».  219);  for,  wherever 
the  words  plainly  import  a  condition  as  in  the  testator's 
contemplation,  aiid  where  that  condition  cannot  be  under- 
stood to  have  been  substantially  complied  with  by  the  event 
which  has  actually  happened,  the  gift  over  fails,  (//a  217.) 

Tlie  limitation  to  '<  such  other  children  of  C.  1).  as  should  Observations 
be  living  at  lier  decease,"  would  have  given  the  children,  if  on  Maddn- 
any,  who  survived  C.  I).,  a  vested  interest  at  her  death;  for,  nnn  v. 
the  payment  alone,  as  Lord  Brougham  intimated,  and  not  Siwell. 
the  vesting,  was  postponed  till  their  majority.     And   hence 
the  ultimaUi  limitation  to  L.  M.  was  a  conditional  limitation,  Sec  §  148-9. 
to  take  etlect  in  defeasance  of  the  estate  of  the  children  of 
C.  D.  who  survived  her,  in  case  of  their  dying  before  21. 
But  as  there  were  no  such  children,  that  is,  no  children  who 
survived  C.  7>.,  and  consequently  the   limitation   "to  such 
other  children  as  should  be  living  at  her  decease,"  entirely 
foiled,  the  ultimate  limitation  to  L.  M.  took  efl'ect,  not  as  a 
conditional  limitation,  in  defeasance  of  a  prior  estate,  but  as 
an  alternative  limitation,  by  way  of  substitution  for  a  prior  Sec  §  12S. 
estate  which  never  took  elTect  at  all:   so  that,  in  the  events  13G. 
which  happened,  the  disposition  made  by  the  will  was  con- 
strued as  if  it  amounted  to  a  bequest  "to  all  such  other  chil- 
dren of  C.  D.  as  should  be  living  at  iier  decease,"  to  be  paid 
to  them  at  21,  but  if  there  shall  be  no  such  children,  then,  to 
L.  M. 

So  where  a  testator  requested  that  his  plate  &c.  might  be  Maclnnnon 
divided  equally  between  his  two  daughters;  and,  upon  the  \.  Peach, -^ 
demise  of  either  of  them  without  lawful  issue,  then  the  share  Keen,  55.3, 
of  her  so  dying  should  go  to  her  sister.     One  of  the  daugh- 
ter's died  umnarried  in  the  testator's  lifetime.     I^ord  Lang- 
dale,  M.  R.,  said,  that,  in  the  event  of  either  daughter  dying 
without  lawful  issue,  her  share  was  given  to  her  sister,  /.  e. 
to  the  survivor  of  the  two  daughters;  and  that  the  circum-        [  3G  I  ] 
stance  of  the  deceased  daughter  having  died  in  the  testator's 
lifetime  did  not  prevent  the  gift  over  to  her  sister  from  taking 
cfTect.     His  Lordship  referred  to  Northey  v.  Burbasj^c,  Prec. 
in  Chan.  471,  pi.  4 ;  JFilling  v.  Baine,  3  P.  W.  113 ;  J/um- 
])hrey^s  v.  Howes.,  1  Russ.  &  INI.  639. 

And  so,  where  a  testator  gave  a  sum  of  money  in  trust  to  Wilson  v. 
pay  the  interest  to  e^.,  for  life  ;  remainder  to  /?.,  for  life  ;  re-  Mount,  2 
mainder  to  such  of  the  children  of  .1.  as  should  be  living  at  the  Bear.  397. 
decease  of  the  survivors  of  .'i.  and  />.,  to  be  paid  at  21 ;  with 
benefit  of  survivorship,  in  case  of  the  death  of  any  of  thcni 
under  21;  and  if  all  such  children  should  die  under  that  age, 
then,  from  and  after  the  decease  of  .^.  and  />.,  to  pay  over 
the  capital  to  certain  other  persons.     ^Q.  had  only  two  chil- 
dren, and  they  attained  21,  and  died,  leaving  issue,  in  ./i.'s 


[  3Gi  ]        ir.  2  1.]  AN  ORIGINAL  VIEW         [§672a,  G73. 

lifetime.  Lord  Langdale,  ]\I.  R.,  helcl,  on  the  authority  of 
Mackinnon  v.  Sewell,  (though  that,  as  his  Lordship  observ- 
ed, was  the  case  of  a  residuary  gift)  that  the  words  were  not 
to  be  taken  according  to  their  strict  meaning,  but  that  the 
gift  over  took  effect. 
Excepiion.         But  where  the  prior  Hmitation  is  void  for  re-         G72a 

motencss,  a  subsequent  conditional  limitation  fails, 
Routledge\.      A  person  made  a  testamentary  appointment  of  a  sum  of 
Dorril,  2       money  to  AI.  I).,  for  her  life,  for  her  separate  use  ;  and  after 
Vcs,  Jun.       lier  decease  to  her  children;  and,  in  case  she  should  leave  no 
356.  children,  or  they  should  die  before  21  or  marriage,  to  B.  D., 

his  executors  and  administrators.  The  appointment  to  the 
children  being  held  to  be  void  for  remoteness,  in  consequence 
of  not  being  confined  to  21  years  from  lives  in  being  at  the 
creation  of  the  power,  it  was  argued,  that  the  subsequent 
appointment  to  R.  D.  was  only  accelerated  by  the  failure  of 
the  prior  limitation.  But  Sir  R.  P.  Arden,  M,  R,,  held,  that 
it  was  void:  because  (he  observed)  it  would  be  monstrous 
to  contend,  that  although  it  was  appointed  to  R.  D.  in  fail- 
ure of  the  existence  of  persons  incapable  of  taking,  yet,  not- 
withstanding they  exist,  he  should  take  as  if  it  was  well 
appointed  to  them  and  they  had  failed.  And  though  there 
were  no  children  of  M.  D.,  and  there  might  be  none,  yet  he 
agreed  with  Lord  Kenyon,  in  Gee  v.  Dudley,  \\\n.iX\\Q  Court 
[  365  ]  would  not  wait  to  see  what  contingency  would  happen, 
when,  at  the  time  it  was  given,  it  was  at  a  period  more  dis- 
tant than  the  law  would  ])ermit.  (2  Ves.  Jun.  363.) 
VI.  Condi-  VI.  Where  a  remainder  in  fee,  and  not  in  tail  673 

tional  iimita-  or  for  life,  is  sul)ject  to  a  conditional  limitation,  to 
tion  bccom-  take  effect  in  defeasance  of  such  remainder,  in  an  event 
ing  a  re-  which  must  happen,  if  at  all,  before  the  regular  expiration 
mainder  in  of  the  particular  estate;  in  such  case,  although  the  condi- 
the  room  of  tional  limitation  has  no  connexion  with  the  particular  estate, 
a  preceding  jj-j  ^j^g  ^^,^^  instance ;  yet,  if  the  event  happens,  on  which 
remainder  HI  jj-jg  conditional  limitation  is  to  take  effect,  the  conditional 
S^'  5*  idQ  Q  lif^iif'^'ion  then  becomes  a  remainder  expectant  upon  the 
^.J^      '  '  '  particular  estate,  in  the  room  of  the  original  remainder  in 

fee. 

JJoe  d.  liar-      A  testator  devised  to  his  daughter,  E.  H.,  the  wife  of 

ris  V.  How-    TV.  IL,  for  life  ;  remainder  to  W.  FL,  for  life  ;  remainder  to 

ell,  10  Bar.   John,  his  daughter's  son,  and  his  heirs  and  assigns  for  ever; 

&  Cres.  197,  but,  in  case  he  should  die  before   the   testator's  daughter, 

202.  E.  IF.,  and  she  should  have  no  other  child  living  at  her 

death,  liis  will  was,  that  his  said  daughter  should  give  and 

devise  the  premises  to  such  person  as  she   should  think 

proper.     The  testator  died  in  February  1763,  and  John,i\\e 

(laughter's  son,  in  April  following.     In  .lanuary  1766,  the 

daugjiter  had  another  son,  IV.  II.,  the  younger.     In  No- 

venihor  1770,  JV.  IL  the  elder  died;  and  in  Hilary  Term 


ir.  2-1.J      OF  EXECUTORY  INTERESTS.  [§67 1— G77.        [  3G5  ] 

1773,  E.  11.  levied  a  fine  with  proclamations.  Bayley,  J., 
in  di^livcriiig  the  jiul2;mcnt  of  tlic  (^ourt,  said,  that  until  the 
death  of  the  testator's  grandson,  John,  the  limitation  by  im- 
plication to  any  other  child  or  children  whom  E.  II.  should 
leave  at  her  death,  "  could  avail  only  as  an  executory  devise, 
by  reason  of  the  previous  gift  of  the  whole  fee  to  the  testa- 
tor's grandson,  John.  Upon  the  death  of  John,  we  think 
the  character  and  quality  of  this  limitation  changed,  and  it 

became  a  contingent  remainder For,  at  the  time  the 

fine  was  levied,  the  only  vested  estate  was  in  Elizabeth,  the 
testator's  daughter,  and  her  husband  in  her  right;  and  the 
only  otlier  interest  was  a  contingent  remainder  in  favour  of 
any  child  or  children  she  should  leave  at  her  death,  and  that        [  3GG  ] 

remainder  the  fine  has  destroyed. 
G74  VII.  A  future  interest  (as  the  reader  may  have  VII.  A  future 

perceived  from  sja  preceding  passage (,o-),)  is  never  interest  is 
construed  as  an  interest  under  a  conditional  limitation  or  as  not  con- 
a   springing   interest,  whether  by  way  of  use,  or  devise,  strucd  an  in- 
vvhere  a  preceding  freehold  has  once  vested,  and  the  future  tcrcst  under 
interest  is  so  limited,  that,  at  the  time  of  the  limitation,  there  ".  conditional 
was  a  possibility  of  its  taking  eflect  as  a  remainder;  though  h™'tation  or 
other  circumstances  may  seem  to  indicate  that  it  was  not  in-  ^  spnnguig 
tended  to  take  effect  as  a  remainder;  and  though  eventually,  '"l'^'"^^.^' 

m  fact.  It  may  be  incapable  of  operating  in  that  ,  .      , 

-,_-  11   ^   1.     I  J-        c      111        I  •  u  be  construed 

675  way.     lint,  ''  where  a  prccedmg  freehold,  which  •    , 

J  '  Jo  'a  reniajnclcr 

was  capable  of  supporting  a  future  interest  as  a  g^.^^  t  148-9* 
remainder,  is,  by  a  subsequent  accident,  (as  by  the  death  of  jj--   159 
the  first  devisee  in  the  testator's  lifetime)  precluded  from  But 'when 
taking  any  elfect  at  all;  the  future  interest  may  take  effect  tlic  prcced- 
as  a  springing  interest  by  way  of  use  or  devise,  ing  fi-cchokl 

676  And,  in  such  case,  an  ulterior  interest  in  remainder  fails,  wlmt 
after  such  Idss  remote  future  interest  as  above  men-  would  other- 

lioned,  until  the  less  remote  future  interest  vests,  also  be-  wise  have 
comes  a  springing  interest,  when  regarded  abstractedly  in-  been  a  re- 
stead  of  in  relation  to  the  less  remote  future  interest;  but,  mainder,  is 
as  soon  as  such  less  remote  future  interest  vests,  then  such  construed  a 
ulterior  interest  is  not  only  a  remainder  in  relation  to  such  spi""ig'ng  '"- 
less  remote  future  interest,  but  it  is  simply  a  remainder,  even  ^^'"'^s'- 
when  abstractedly  considered;  having  altogether  ceased  to  -^"*^'/^"  '"'^* 
be  a  springing  interest,  and  having  resumed  that  character  !'°'  "'^<^.''*^-^^ 

in  i*oni  1 1  111  11"' I* 

which  it  would  all  along  have  borne,  had  the  preceding  free-    1,    i  ' 

hold  taken  effect  as  intended. (A)  „  t,  .•     • ^ 

^    '  a  springing 

interest,  abstractedly  regarded,  though  it  is  a  remainder  as  regards  the  less  re- 
mote springing  interest. 

677  And,  in  like  manner,  in  other  cases,  'an  ulterior  And  so,  in 
interest  in  remainder  after  a  less  remote  future  m-  other  cases, 

(o")  Sec  ^  19G — 199,  and  cases  there  referred  to.     And  see  Fearne,  526. 
(//)  Sec  Ilopkins  v.  Hopkins,  Ca?.  temp.  Talb.  44,  as  stated,  Fearne,  525-0. 


[  3GG  ]        II.  25.]  AN  ORIGINAL  VIEW  [§678. 

until  a  loss  terest,  until  such  less  remote  future  interest  vests,  is  a  spring- 
i-emote  fu-  inc:  interest,  when  regarded  abstractedly  instead  of  in  rela- 
[  367  ]  tion  to  such  less  remote  future  interest;  but  as  soon  as 
tare  interest  such  less  remote  future  interest  vests,  such  ulterior  interest 
vests,  an  ul-  becomes  simply  a  remainder,  even  when  abstractedly  con- 
terior  inter-    sidered.(/) 

est  in  re-  A  testatrix  devised  lands  to  J.  N.,  his  heirs  and  assigns 

mainder  is  a  for  ever  ;  provided  that  if  J.  iV,  should  die  without  any  issue 
springing  in-  q^  ^\^q  body  of  his  then  wife  begotten,  that  the  lands,  after 
terest,  ab-  j|jq  death  of  J.  N.  and  his  wife,  sliould  go  to  all  the  children 
stracfedly  of  the  testator's  grand-daughter,  il/.  Z).,  as  tenants  in  com- 
consRcred,  ^^^^^^^  j  ^_  ^-^^^  without  issue,  in  the  lifetime  of  the  testa- 
"alnder  ^  ^^^^''  ^^^^ing  his  wife  him  surviving.  It  was  held,  that  J.  N. 
lemau  c  would  have  taken  an  estate  tail  if  he  had  survived  the  testa- 

such  less  rc-^'^*^^   ''^"^   ^^^°  limitation  to  M.  Z^.'s  children  would  have 
mote  future    operated  by  way  of  contingent  remainder;  but  that,  as  the 
interest.         estate  tail  had  lapsed,  and  the  law  would  not  raise  an  estate 
yj      1    c    //  for  life  by  implication  in  J.  N.'s  widow,  there  was  no  estate 
^R  '  cJ^%   of  freehold  to  support  the  interest  of  M.  B.'s  children,  as  in 
Mau  »fe  '      remainder;  and  therefore,  on  the  authority  of  Hopkins  v. 
Selw.  482.     Hopkins,  Cas.  Temp.  Talb.  44,  the  limitation  to  tliem  ope- 
rated by   way  of  executory  devise.     Lord  Ellenborough, 
C.  J.,  stated  the  rule  to  be,  that  no  limitation  shall  operate 
by  way  of  executory  devise,  which,  at  the  time  of  the  death 
of  the  testator,  was  capable  of  operating  by  way  of  contin- 
gent remainder.     His  Lordship  observed,  that  it  was  clearly 
the  intent  to  benefit  J.  N.  and  his  issue  in  the  first  place ; 
and,   in   the   next  place,  M.   D.'s   children  ;  but  that  the 
manner  of  carrying  the  intention  into  execution,  whether  by 
way  of  remainder,  or  executory  devise,  or  any  other  mode, 
rarely  enters  into  the  mind  or  constitutes  part  of  the  inten- 
tion of  tlie  testator. 


[  3GS  ]  CHAPTER  THE   TWENTY-FIFTH. 

LIMITATIONS    OPERATING    DIFFERENTLY    IN    REGARD    TO 
DIFFERENT    LIMITATIONS. 

T  The  same       I-  ^^^'^   same  hmitation  may  be  '»at  once   an  678 

limitation  alternative  limitation  in  regard  to  the  next  pre- 

may  bo  a  ceding  limitation,  and  a  conditional  limitation  with  respect 

remainder,  to  another  preceding  limitation ;(«)  or  a  remainder,  in  rela- 

(i)  Stephens  v.  Stephens,  Cas.  temp.  Talb.  228,  as  stated,  Fcarne,  519,  52G. 
(a)  See  Fcarne,  514,  note  (/). 


II.  25.]      OF  EXECUTORY  INTERESTS.  [§679— G81.        [  3(JS  ] 

lion  to  the  next  preceding  liniilalion  ;  an  alternative  limita-  an  alterna- 
tion, in   regard  to   another    limitation  ;   and   a   conditional  live,  and  a 
hmitation,  with  respect  to  a  still  earlier  limitation,  conditional 

679  For,  since  a  remainder  usually  has  the  ellbct  of  Hniitation. 
an  alternative  hmitation,  if  the  preceding  interest  ^^'^  §  l^"* 

never  takes  effect  at  all ;  where  the  preceding  interest  is  an  l-*^.  H'^-'J. 
alternative  Jinntation,  wliich  does  not  carry  a  fee  simple  or  ^^^  >  ""^• 
(lualified,  and  which  is  a  suhstitnte  for  a  ])rior  limitation  in 
fee,  and  neitlur  the  jjrior  limitation  in  fee,  nor  the  inter- 
vening alternative  limitation  so  substituted  for  it,  take  any 
elfect  at  all,  the  remainder,  operating  in  this  case  as  a  sub- 
stitute for  a  substitute,  that  is,  for  the  intervening  alternative 
hmitation,  must  be  a  substitute  for  the  prior  hmitation  in 
fee  :  and  hence,  the  remainder,  at  the  time  of  its  creation,  is 
capable  of  operating  either  as  a  remainder,  or  as  an  alterna- 
tive limitation,  as  regards  the  intervening  alternative  limita- 
tion, and  also  as  a  simply  alternative  limitation  in 

680  respect  to  the  prior  limitation  in  fee.  And  wliere 
a  clause  takes  efl'ect,  by  way  of  alternative  limita- 
tion, as  a  substitute  for  a  conditional  limitation,  it  must  be 
itself  a  conditional  limitation,  with  respect  to  the  interest  to 
be  defeated  by  the  conditional  limitation  for  which  it  is  a 

substitute. 
GSl  To  illustrate  the  truth  of  these  positions,  let  us 

suppose  that  lands  are  devised  to  the  use  of  c/?. 
and  his  heirs;  and  if  he  shall  leave  no  child  of  his  body  [  3G9  ] 
living  at  his  decease,  to  the  first  son  of  JJ.  who  shall  attain 
the  age  of  21,  and  his  heirs;  and  if  B.  shall  have  no  such 
son,  to  all  the  daughters  of  i?.  who  shall  attain  the  age  of 
21,  or  marry,  and  the  heirs  of  their  bodies,  &.C.,  remainder  to 
C.  and  his  heirs.  In  this  case,  if  »,^.  leaves  no  child  living 
at  his  decease,  and  B.  lias  no  son  who  attains  21,  but  the 
estate  vests  in  the  daughters  of  B.,  and  there  is  alterwards 
a  failure  of  issue  of  their  bodies,  the  limitation  to  C.  will 
operate  as  a  remainder  in  relation  to  the  limitation  to  the 
daughters  of  B.  But  if  ./^.  leaves  no  child  of  his  body  living 
at  his  decease,  and  B.  has  no  son  who  attains  21,  nor  any 
daughter  who  attains  that  age  or  is  married,  the  limitation 
to  C,  instead  of  operating  as  a  remainder,  takes  eilect  as  a 
substitute  for  the  intervening  alternative  limitation  to  the 
daughters  of  B.,  which  is  a  substitute  for  the  prior  limita- 
tion to  the  son  of  B. ;  and  thus  the  limitation  to  C,  is 
mediately  and  virtually  a  substitute  for  the  prior  limitation 
to  the  son  of  B.,  or,  in  other  words,  an  alternative  limitation 
in  regard  to  the  gift  to  the  son  of  B.  And,  in  such  case,  it 
is  also  a  conditional  limitation  as  respects  the  limitation  to 
.'?. ;  inasmuch  as  the  gift  to  the  son  of  B.,  for  which  it  is 
mediately  and  virtually  an  alternative  or  substitute,  is  a 
conditional  limitation,  as  regards  the  limitation  to  »'i.     If  t7. 


[  369  ]        II.  2.5.]  AN  ORIGINAL  VIEW  [§6S2,  682a. 

has  no  child  of  his  body  hving  at  his  decease,  the  fee  is  to 
pass  from  him,  and  whatever  hmitation  may  happen  to  be 
the  one  which  attracts  and  transfers  the  fee  from  him  to  an- 
other person  on  that  event,  is  a  conditional  limitation,  as 
regards  the  limitation  to  A.:  so  that,  if  ^d.  leaves  no  child 
living  as  atbresaid,  and  B.  has  no  child  who  becomes  capa- 
ble of  taking,  the  limitation  to  C.  will  take  effect  on  tlie 
death  of  A.\  and  by  transferring  the  fee  from  Jl.  to  C,  will 
operate  as  an  alternative  limitation,  as  regards  the  condi- 
tional hmitations  to  the  sons  and  daughters  of  B.,  and  thus, 

II.  The  same  ^^^"^''^o  in  their  place,  will  also  operate  as  a  conditional 
limitation  limitation,  as  respects  the  limitation  to  A.,  in  the  same 
innv  be  an  manner  as  the  limitation  to  the  sons  of  B.  would  have  ope- 
alicniative      rated,  had  it  taken  any  effect. 

and  an  aiig-        II-  And  it  would  seem,  that,  in   a  similar  man-  682 

[  370  ]  ner,  the  same  limitation  may  be  an  alternative 
mcntative  limitation  in  regard  to  the  next  preceding  contingent  limita- 
limitation,  or  tion,  and,  at  the  same  time,  as  respects  another  preceding 
a  limitation  Jimitation,  or  the  absence  of  any  preceding  vested  limifa- 
ofa  spring,  tion,  an  augmentative  limitation,  or  a  hmitation  of  a  spring- 
ing interest,   ing  interest. 

.-oe  §  128,         jii^  Every  more  remote  limitation  may  be  a         6S2a 
'    -^ '•       remainder,  as  regards  a  prior  limitation,  though  it 

III.  Every  is  not  limited  next  after  such  prior  limitation,  so  long  as  it  is 
more  remote  to  take  effect,  if  at  all,  on  the  regular  expiration  of  the  in- 
limitation       terest  created  by  such  prior  limitation. 

may  be  a  yr  ^  devised  to  his  son  G.  for  life;  and,  from  and  after 

remainder  as  j-,jg  decease,  unto  all  and  every  the  children  and  child  of  C, 

?'    ,.    .       lawfully  to  be  begotten,  and  their  heirs  for  ever,  to  hold  as 
prior  limita-    .  ^    ■  '^      ,    '    .^  ,  .  y-,      ■       i  i     i-         •  , 

tion   thou"h  ^^nants  m  common ;  but,  it   his  son   G.  should  die  without 
not  limited     i^^"^'  o^'  leaving  issue,  and  such  child  or  children  should  die 
next  after  it    l^^fore  attaining  the  age  of  21  years,  or,  without  lawful  issue, 
.See  \  1-59.  '  then,  he  devised   the   same   estates  unto   his  son    7'.,  his 
Doe  d  Her-  ^^^§^^6^  Jl.  S.,  and  his  son-in-law  fV.  Z>.,  and  to  their  heirs 
bcrt  V*  Sel-    ^^^  ever,  as  tenants  in  common.     After  the  testator's  death, 
bij  2  Bar  &  ^"  suflered  a  recovery,  and  died  unmarried,  and  without 
Crcs.  9"26.     issue.     Baylcy,  J.,  remarked  that  the  devise  must  be  read 
"if  the  children  should  die  before  21   ««</ without  issue," 
.Sec  §  1.j9.     as  otherwise  the  remainder  [executory  devise]  would  be  too 
remote.     And  he  added  that  "an  estate  may  be  devised 
over  in  either  of  two  events;  and  that,  in  one  event,  the 
devise  may  operate  as  a  contingent  remainder  [in  relation 
to  the  particular  estate];  in  the  other,  as  an  executory  de- 
vise,  [in  relation    to   an   intervening   interest].      Thus,  if 
George  had  left  a  child,  a  determinable  fee  would  have 
vested  in  that  child,  and  then,  the  devise  over  could  only 
."^ec  §  148-     have  operated  as  an  executory  devise,  [i.  e.  as  a  conditional 
158.  limitation  by  way  of  executory  devise].  But,  George  having 

died  v/iihout  having  a  child,  the  first  fee  never  vested,  and 


II.  2G.]      OF  EXECUTORY  INTERESTS.  [§GS3— G86.        [  370  ] 

the  remainder  over  continued  a  contingent  remainder  "  [in 
relation  to  the  particular  estate].  y\nd  the  Court  lield  ac- 
cordingly, that  it  was  a  contingent  remainder,  and  was  tliere- 
fore  defeated  by  the  destruction  of  the  particular  estate  by 
the  recovery. 


CHAPTER  THE  TWENTY-SIXTH.  [  37i  ] 


LIMITATIONS    INTENDED  TO    OPERATE    IN    DIFFERENT    WAYS, 
IN  REGARD  TO   DIFFERENT    PORTIONS  OF   PROPERTY. 

683  It  would  seem  that  a  limitation  may  operate  in  Limitations 
different  ways  in  regard  to  different  portions  of  "^^>' .*^P^''^^° 
property.     Thus,  in  this  way. 

684  I.  There  would  appear  to  be  no  reason  why  a  ^  -^  limita- 
limitation  should  not,  by  express  words,  be  made  '"'"  "^j*-^  "'^ 

to  operate  as  a  conditional  limitation  in  regard  to  property  P'^'""*^^  ^°  ^''^ 
previously  devised  to  some  other  person,  and  also  as  a  limi-  ^  opcia  e  as 
f     ■  c  ■      ■         •    .         »    ■  1    .  ,  *  f»  conditional 

tation  or   a   springing   niterest  in   regard   to  property  not  ,-    •     • 

before  devised,  in  such  a  way,  that,  in  one  and  the  same  ^^^  ^^^  ^  jj_ 
event,  both  portions  of  property  may  go  to  the  same  per-  citation  of  a 
son.  si)ringing  in- 

terest, in  regard  to  different  portions  of  property. — See  §  148-9,  117,  127b. 

685  II.  In  a  similar  manner,  it  is  conceived,  that  a  II.  A  limita- 
limitation  may  be  penned  so  as  to  operate  as  an  tion  may  be 

alternative  limitation,  in  regard  to  one  portion  of  property,  so  penned  as 
and  as  another  kind  of  limitation,  in  regard  to  another  por-  t°  operate  as 
tion  of  property,  ^."  "'tc-ma- 

686  It  may  indeed  be   objected,  that  as  the  person  ^'^^  l*"*^/^."^ 

who  is  the  object  of  an  alternative  limitation,  is  ''^"'^'.^'i^;'"  '^.'"^ 

onlv  a  sul)stitute  for  the  primarv  object  of  the  testator's  ?    '"^'  '^  ""'"' 

in  rO'^'QrG  to 
bounty,  there  is  an  improbability,  a  priori,  that  the  alterna-  jut.  i^,    ^^.. 

tive  limitation  should  be  intended  to  vest  in  him  a  larger  ,;"'^  ^r,,.^ 
1  1  .....  1,1  tions  ol  pio- 

amount  ot  property  than  the  prior  hnntation  would  iiave  .^(.y^y 

vested  in  the  primary  object,  in  whose  stead  he  is  to  take.  <^,.,/a,'  joq 
But,  yet,  it  is  conceived,  that  an  alternative  limitation,  may,  n^^  70(5^ 
by  express  words,  have  this  operation,  unless  the  event  on  Obiccticm 
which  the  alternative  limitation  is  to  take  elfect,  is  too  re- 
mote as  regards  the  additional  property. 
Vol.  II.— 38 


[  371  J        II.  2G.]  AN  ORIGINAL  VIEW  [§687. 

In  the  cr\se  of  MaJcolm  v.  Taylor,  the  contrary  6S7 

miglit  seem  to  he  decided;  hnt  probahly  it  is  not 
to  be  regarded  as  going  the  length  ofestahHshing  a  general 
rule,  to   the  effect,  that  an  alternative  limitation  cannot  be 
[  372  ]        made  to  pass  more  than  vvonld  have  passed  in  the  opposite 
event,  nnder  the  prior  limitation,  for  which  it  is  a  substitnte. 
Malcolm  V.        I«  that  case  a  testatrix  devised  and  beqneathed  a  West 
Tiiylor,  'J       IiKJia  plantation,  and  all  the  residue  of  her  money  in  the 
Russ.  &  M.   funds,  and  also  her  plate,  books,  and  certain  portraits,  to 
41t>.  E.  G.  T.,  and  M.  7'.,  for  their  lives,  equally;   and,  after  the 

death  of  either,  the  whole  to  the  survivor,  for  life;  and, 
after  the  decease  of  the  survivor,  then,  unto  such  children 
of  M.  T.  as  she  should  appoint ;  and,  in  default  of  appoint- 
ment, then  the  plantation  and  the  residue  of  the  stock  to  be 
equally  divided  among  the  said  children  and  their  heirs; 
the  stock  to  be  an  interest  vested  in  them,  being  sons,  at 
21,  and,  being  daughters,  at  21  or  marriage;  but  in  case 
M.  T.  should  die  without  issue  of  her  body,  the  testatrix 
devised  the  plantation  equally  among  the  children  of  Jl.  T. 
and  their  heirs  and  assigns ;  and  in  case  M.  T.  should  die 
without  issue  as  aforesaid,  the  testatrix  bequeathed  the  said 
residue  of  stock,  and  all  her  said  plate,  books,  and  portraits, 
unto  /.  M.  and  liis  assigns,  for  his  life,  and,  after  his  decease, 
she  bequeathed  the  same  to  his  eldest  son  for  ever.  But,  in 
case  the  said  /.  M.  should  die  under  age  and  without  issue, 
she  then  gave  the  said  residue  of  stock,  plate,  books,  and 
portraits,  to  M.  M.  absolutely.  M.  T.  survived  E.  G.  T., 
and  died  without  having  been  married.  It  was  held  by  the 
Master  of  the  Rolls,  and  afterwards  by  Lord  Brougham,  C, 
on  appeal,  that  /.  M.  took  a  life  interest  in  the  stock,  but 
no  interest  in  the  plate,  books,  and  portraits.  1.  /.  M.  took 
an  interest  of  some  kind  in  the  stock.  It  was  argued,  tliat 
the  words,  "in  case  M.  T.  should  die  without  issue  as 
aforesaid,"  imported  an  indefinite  failure  of  issue.  But  it 
was  decided,  that  they  referred  back  to  the  children,  so  as 
to  amount  to  an  alternative  limitation  in  the  event  of  M.  T. 
having  no  children  at  all;  the  testatrix  clearly  intending  lo 
bequeath  the  stock  to  the  children  of  M.  T.,  if  she  had  any 
children,  and  to  /.  J\l.,  if  she  had  not  any  children.  2.  The 
interest  which  /.  M.  took  was  only  for  life:  for,  it  would  be 
doing  the  utmost  violence  to  the  obvious  meaning  of  the 
See  M03-4.  clause,  to  construe  "son"  a  word  of  limitation,  when,  in 
[  373  ]  almost  every  case,  it  is  a  word  of  purchase,  and  the  interest 
of/.  M.  was  expressly  restricted  to  a  life  interest;  and  the 
meaning  of  the  subsequent  words,  "in  case  the  said  /.  M. 
shall  die  imder  age,  and  without  issue,"  might  fairly  be 
taken  to  refer  to  the  contingency  of  iiis  dying  without 
having  had  anv  children.     3.  It  was  held  that  /.  M.  took  no 


II.  2G.J         OF  EXECUTORY  INTERESTS.  [§687.       [  373  ] 

interest  in  llie  books,  plulc,  and  porlnut.s.     The   reason  of 
tfiis  decision  is  thus  stated  by  Lord  Hrougliani.     "  It  [i.  e. 
the  plate]  is  first  given,  with  the  plantation  and  the  stock, 
to  ElizabeUi  and   Maria,  and  the  survivor,  lor   life,  and, 
after  the  siu-vivor's  decease,  to   Maria's  children,  as  she 
may  ai)point.     Here  the  plate  [together  with  the  books  and 
portraits]  is  dropped,  and  no  ]>rovision  with  regard  to  it  is 
made,  in  the  event  of  Maria  Taijlor  failing  to  exercise  her 
power  of  appointment.     So  that,  in  this  first  portion  of  the 
will,  there  is  no  dealing  with  the  i)late,  to  which,  in  con- 
struing the  subsequent  gift  over,  the  words  '  without  issue 
as  aforesaid'  can  be  referred  back.     If  then  the  construction 
as  to  the  stock  be  a  sound  one,  which  refers  those  words  to 
such  issue  as  had  been  mentioned  when  dealing  with  the 
same  fund  in  the  former  clause,  and  not  to  the  issue  men- 
tioned  when   dealing   with   the   plantation;   by  parity   of 
reason,  all  reference  back  must  be  excluded,  in  construing 
the  same  words  as  to  the   plate ;    inasmuch   as    there   is 
nothing  before  mentioned  touching  the  plate  in  connexion 
with  the  children,  or  with  any  thing  to  which  issue  can  refer. 
The  plate,  then,  will  be  given  over  on  a  general  failure  of 
issue,  and  whether  from  the  gift  being  too  remote,  or  from  See  §  706, 
the  gift  to  her  being  what  in  the  case  of  realty  would  be  an  714,  719. 
estate   tail — it   is   indiiiercnt  which — Maria   Taylor  takes  See  §  5!J;3, 
absolutely;   and   consequently,  the  interest  in  this  partof^Q^a' 
the  property  now  vests  in  her  personal  representatives." 
(2  Russ.  &  M.  4  14.) 

With  the  utmost  deference  for  so  great  an  authority,  it  Observations 
may  perhaps  be  questioned,  whether  this  part  of  the  deci-  on  Malcolm 
sion  is  altogether  satisfactory — whether  there  was  any  ne-  v.  Taylor, 
cessity  for  the  conclusion  to  which  the  noble  and  learned 
Judge  thought  himself,  by  parity  of  reason,  obliged  to  come. 
The  reasoning  at  the  bar  would  seem  to  be  perfectly  incon- 
trovertible, when  it  was  urged,  that  there  was  "  but  one 
set  of  words  introducing  the  gift  over,  both  of  the  funded  [  374  ] 
property  and  of  the  plate  and  books,  and  equally  referable 
to  both.  How  then  was  it  possible  to  deny  to  the  same 
words  the  same  construction,  with  reference  to  one  and  the 
same  subject  matter  ?  for,  though  the  descriptions  of  pro- 
perty are  two,  they  form  the  subject  of  but  one  gilt ;"  {//). 
128)  and  (it  might  have  been  added)  they  are  of  the  same 
legal  nature,  being  both  personal  estate.  It  is  true,  indeed, 
there  was  some  degree  of  imi)robability,  d  priori,  in  the 
supposition,  that  the  alleriiative  limitalicMi  should  have  boon 
intended  to  confer  on  /.  M.  and  his  son,  a  larger  amount  ol 
property,  in  the  event  of  there  being  no  children  of  il/.  T., 
than  those  children,  the  prior  objects  of  the  testator's  bounty, 
would  have  taken,  if  any  such  had  existed.     But  this  dif- 


[  374  ]        II.  26.]  AN  ORIGINAL  VIEW,  &c,  [§6S7. 

ference,  as  was  urged  at  tlic  bar,  probably  arose  from  a 
mere  accidental  slip.  But  admitting  that  it  did  not,  the 
simple  question  would  seem  to  be,  not  what  was  the  proba- 
bility or  improbability,  a  pj^iori;  but,  what  were  the  express 
words?  and,  whether  there  is  any  rule  of  law,  preventing 
an  alternative  limitation,  however  it  may  be  framed,  from 
conferring  on  the  person  who  is  the  object  of  it,  a  larger 
amount  of  property  than  the  other  party  would  have  re- 
ceived for  whom  he  is  substituted  ? 


PAET  III. 

RULES  AND  PRINCIPLES  RELATING  TO  MISCELLA- 
NEOUS POINTS  IN  THE  LEARNING  OF  EXECUTORY 
INTERESTS. 


III.  1.]      OF  EXECUTORY  INTERESTS.  [§688— f>90.        [  377  ] 


CHAPTER  THE  FIRST. 

OF  THE  EFFECT  OF  THE  NON-FULFILMENT  OF  CONDITIONs(«) 
PUECEDENT  AND  MIXED. 

688  I.  When  the  vesting  of  an  interest,  whether  in  real  I.  EfTect  of 
or  personal  estate,  is  made  to  depend  upon  a  con-  the  non-ful- 

dition  precedent  or  mixed,  and  such  condition  is  not  exactly  filment  of 
fuUilletl,  the  interest  which  is  to  arise  thereon,  if  it  is  not  a  direct  condi- 
mere  ahernative  interest,  fails  ahogelher,  however  plain  the  f"^"^  precc- 
a])parent  intention  to  the  contrary  may  be,  unless  such  inten-  ^'^"'^  ^'"^ 
tion  is  sullicicntly  expressed  by,  or  necessarily  impUed  in,  '"T"^p"5(§  13, 
other  words  in  the  instrument.  ^   '-'.  ^.'"^''^ 

689  And  ''if  such  interest  was  to  arise  by  wav  of  f''^"''"^"'"^^'*^" 

I-.-        1  I-     •«   .•         ■      1   r  r  ■   '  ■      IS  not  a  mere 

conditional  limitation,  in  defeasance  ol  a  prior  in-    , 

n  icrnntivo 
terest,  such  ])rior  interest  then  becomes  absohite  and  inde-  ^i^  ,.,u\     ' 

feasible  :(Z»)   because,  the  condition,  as  regards  such  prior 

interest,  is  a  condition  subsequent ;  and  an  interest  subject  c^^.^  ^  H   ]o 

to  be  defeated  by  a  condition  subsequent,  of  course  becomes 

absolute,  when  tlie  fulfilment  of  such  condition  can  no  longer 

take  j)lace. 

The  exact  fulfilment,  then,  of  a  condition   precedent  or 

mixed,  being  requisite,  it  follows,  that 

690  1.  Where  an  event  may  take  place  under  differ-  ^-      "ip'otnc 

ent  circumstances,  and  the  testator  has  only  pro-  ^^^"    ^^?' 

*  r»ons  11  nf  lor 

vided  for  its  happening  under  one  state  of  circumstances;  in    .,  ' 

'  ^  ^  other  cir* 

such  case,  if  it  happens  under  other  circumstances,  the  in-  (.nmstnnces 
erest  limited  will  fail,  unless  it  is  a  mere  alternative  interest,  thnn  those 
although  the  dili'erence  in  the  circumstances  may  appear  to  specified 
be  perfectly  inmiaterial,  and  although  it  is  almost  certain,  con-         r   375  ] 
jecturally,  that  the  testator,  in  providing  for  one  case,  forgot  fmcl  Uic  liini- 
to  provide  for  others  that  might  arise,  instead  of  intending  tation  is  not 
flic  interest  to  depend  on  the  event  happening  in  the  mode  a  mere  altcr- 
specified.  native. 

A  testator,  if  his  son  should  die,  leaving  his,  the  testator's,  jjohnes  v. 
wife,  without  leaving  a  widow  or  any  child,  after  his  death  Cradork,  3 
and  his  wife's,  gave  to  F.  H.  a  legacy  charged  on  his  real  Ws.  317. 
estate.     The  son  survived  the  testator's  wife,  and  then  died, 
without  leaving  a  widow  or  child.     Sir  R.  P.  Ardeii,  M.  R., 
(on    the   authority  of  Boo  v.  Brabant^  and  Calikorp  v. 

(<j)  As  to  the  question,  what  amounts  to  a  fulfilment  of  a  condition,  the  reader 
is  referred  to  the  learning  of  conditions  in  the  text  l)ooks  and  al)ri(ii:ments,  such 
as  Coke  upon  Littleton,  Slieppnrd's  Touchstone,  and  Vincr's  AhridL'UK  nt. 

(It)  See  Jackson  v.  Xoblr,  2  Keen,  590. 


[  37S  ]        III.  1.]  AN  ORIGINAL  VIEW  [§691. 

Goiigh,  3  Bro.  C.  C.  393,  395;  and  Doin  v.  Bagshaw,  6 
T.  R.  B.  R.  512,)  held,  that  the  legacy  failed:    for  though  he 
was    perfectly  satisfied  as  to  the  intention,  yet  it  was  not 
sufficiently  expressed  to  enable  him  to  execute  it. 
Parsons  v.         So  where  a  testator  directed,  that  in  case  J.  H.  sliould  die 
Parsons,  5    before   21,   leaving  issue,  then,  that  his  executors  should 
Ves.  578,      divide  a  sum  of  money  among  the  children  of  J.  II. ;  and 
See  also         J.  H  died,  leaving  issue,  before  the  time  at  which  the  money 
Pairsall  V.    was  given  to  herself,  but  after  she  had  attained  21.     Sir  R. 
Simpson,  15  p,  Arden,  M.  R.,  on  the  authority  of  the  same  cases,  held, 
^es.  29.        tj^at  jj^g   legacy  failed  ;  though  he  observed   that  Denn  v. 
Bagshaw  revolts  the  feelings  of  any  man  sitting  in  judg- 
ment, provided  he  is  at  liberty  to  indulge  them  in  anything 
beyond  necessary  implication. 
Diclcn  V.  -And  where  a  testator,  after  making  other  limitations, pro- 

Clurkc,  2  ceeded  thus  :  "  But,  in  case  of  such,  my  son's  demise  in  the 
You.  &  Coll.  widowhood  of  his  mother,  without  leaving  lawful  issue, 
572.  then,  I  direct  the  whole  of  the  proceeds  of  my  property  to 

be  paid  to  her  during  her  widowhood,  subject  to  an  annuity 
of  40/.  per  annum  to  be  paid  to  7\  B.;  and,  in  case  of  the 
marriage  or  death  of  my  wife,  my  son   being  dead,  and 
leaving  no  lawful  issue,  then,  I  give  the  whole  of  the  pro- 
ceeds of  my  estate  to  J.  5."     The  son  survived  the  widow, 
2,  Where  a    ^nd  died  without  issue.     Alderson,  B.,  held  that  the  estate 
limitation       belonged  to  the  heir-at-law. 
over  IS  on  ^^  ^^^^  where  a  testator  confines  his  bounty  to  691 

10  no    cav-  certain    descendants   only  of   himself  or  another 
irifj  issue,  "o-  1  .1        1-     ■.    .1  .  •  /•  I  • 

r     •  II  •  -1  P^*"^^'^'  ^'"1  ^'"^'^  hmits  the  pro|)erty  over,  m  case  of  his  or 

n-.f  ...L'/ur  ^^  such  other  persons  dyina:  without  leaving  issue:  in  this 
iioi  intiHiiy  ...  II  1         1  •  111  I 

r  379  1        case,  it  he  or  such  other  person  does  leave  issue  at  all,  though 

on  the  not      no"6  of  the  description  to  whom  the  property  was  expressly 

l^.^vjn„  issue  linfiifed,  the  Court  will  not  supply  the  word  "such,"   or 

wiiocantake  "said,"  so  as  to  make  the  limitation  over  capable  of  taking 

under  the       effect  on  the  failure  of  the  issue  who  were  the  objects  of  the 

prior  limita-   prior  limitations,  but  will  hold  the  limitation  over  to  have 

tioiis.  failed. 

Doe  d.  Rew,      ^  testator  devised  one  moiety  of  and  in  a  house,  as  fol- 

V.  Li/craft,    lows:  "  In  trust  for  such  son  of  mine,  by  my  present  wife, 

8  Bing.  isso.  as  shall  first  attain  the  age  of  21,  as  and  when  such  sou 

shall  attain  such  age,  and  for  his  heirs  and  assigns  for  ever. 

But,  in  case  I  shall  depart  this  life  without  leaving  a  son, or, 

leaving  such,  none  shall  live  to  attain   the  age  of  21  years, 

then,  in   trust  for  my  daughter,  J.  N.,  if  she   shall  live   to 

attain  the  age  of  21  years,  and  for  her  heirs  and  assigns  for 

ever.     But,  in  case  my  said  daugliter  shall  depart  this  life, 

under  that  age,  then,  in  trust  for  such  other  my  daughter, 

by  my  present  wife,  as  shall  live  to  attain  the  age  of  21 

years,  and  for  her  heirs  and  assigns  for  ever.     But  should  I 

d<'part  this  life  without  leaving  issue,  then,  in  trust  for  A'.  L. 


III.  l.J        OF  EXFXUTORY  INTERESTS.  [§G92,  G93.        [  379  ] 

(his  wife's  brother),  liis  heirs  and  assigns,  for  ever."  J.  N., 
{he  testator's  daughter  and  only  child  died  at  the  age  of  4 
years.     It  was  held  that  N.  L.  took  nothing. 

And  where  a  testator  bequeathed  a  sum  of  stock,  in  trust  Andrec  v. 
for  G.  G.,  for  life  ;  and,  in  case  he  should  marry  any  woman  Ward,  I 
with  1000/.  fortune,  then,  his  will  was,  that  the  said  sum  of  I^uss.  2G0. 
stock  be  settled  upon  his  wife  and  the  issue  of  such  mar- 
riage ;  but,  in  case  of  iiis  son's  decease,  leaving  no  issue, 
then,  he  gave  the  stock  to  certain  other  persons,  and  be- 
queathed the  residue  of  his  estate  to  IV.  IF.  Two  suits 
wore  instituted  respecting  this  property.  And  Lord  Gitford, 
M.  11.,  held,  that  the  words  of  the  will  were  not  sulficient 
to  create  a  quasi  entail  in  G.  G..  since  the  fund  was  given 
over,  not  upon  a  failure  of  G.  G.'s  issue  generally,  but  upon 
his  leaving  no  issue  at  the  time  of  iiis  death  ;  and  it  was 
far  from  the  testator's  intention,  that  the  effect  of  liis  bequest 
should  be,  to  give  his  son  the  absolute  property  of  the  fund, 
whomsoever  he  might  marry,  which  would  in  fact  be  the 
consequence,  by  the  rules  of  law  in  regard  to  personal  estate, 
if  the  son  look  a  r/uasi  estate  tail.  Neither  were  these  [  380  ] 
words  sufficient  to  imply  a  gift  to  the  issue  of  G.  G.  And 
His  Lordship  refused  to  insert  the  word  "  such,"  in  favour 
of  the  persons  claiming  under  the  limitations  over,  and  to 
read  the  clause,  "  in  case  of  my  son's  death  leaving  no  such 
issue ;"  but  held,  that  the  limitations  over  failed,  because 

the  son  did  leave  issue. 
("»92  II.  Where  a  conditional  limitation  is  limited  in  N.  Effect  of 

favour  of  unborn  persons,  or  persons  who  shall  the  non-e^- 
answer  a  given  description,  and  no  such  persons  come   in  i-^tcnce  ot  the 
esse  or  answer  such  description,  the  preceding  estate  becomes  ohjects  ol  a 
absolute  :  because,  although  the  express  condition  may  have  ("onditional 
been  fulfilled,  on  which  such  estate  is  to  go  over,  yet,  as  hmitaiion. 
there  is  no  one  to  whom  it  can  go  over,  according  to  the 

terms  of  the  conditional  limitation,  it  must  of  ne- 
693  cessity  remain  undevested  by  the  fulfilment  of  the 

express  condition.  Or,  to  view  the  point  in  an- 
other light;  if  the  existence,  at  some  period,  of  the  objects 
of  the  conditional  limitation,  is  regarded  as  indirectly  form- 
ing a  part  of  the  condition;  then,  the  subsequent  interest 
necessarily  fails,  on  account  of  the  non-fulfilment  of  such 
condition,  according  to  the  first  general  rule  in  the  present 
chapter. 

A  testator  gave  personal  estate  to  his  wife,  for  life  ;  and,  Smifhcr  v. 
from  and  after  her  death,  the  capital  to  be  divided  between  ir///o<7.-,  9 
the  testator's  brothers  and  sisters,  in  equal  shares;  but,  in  ^  *-'s. -33. 
case  of  the  death  of  any  of  them  in  the  lifetime  of  the  wite, 
the  shares  of  him,  her,  or  them  so  dying,  to  be  divided 
between  his  children.     One  of  the  brother's  died  m  the  life- 
time of  the  testator's  widow,  without  having  ever  iiad  a 
Vol.  II.— 39 


[   3t;0   J         III.  1.] 


AN  ORUilNAL  VIEW  [§694,695. 


Harrison  v. 
Forevidii,  o 
Ves.  206. 


[   381    ] 


III.  Where 
the  limita- 
tion is  u.  mere 
alternative 
limitation. 

Principle  of 
the  distinc- 
tion. 


See  §  13. 


Prestwidgc 
V,  Groom- 
bridge,  6 
Sim.  171. 
See  also 
Former  ea  u 
V.  Fonne- 
reau,  3  Atk. 
315, as 
stated, 
Fearnc,  512 


child.  Sir  W.  Grant,  M.  K.,  Iickl,  that  lie  took  a  vested 
interest,  subject  to  be  devested  only,  [in  eliect,]  in  the  event 
of  his  death  in  the  life  of  the  widow,  leaving  children  ;  and 
consequently  that  event  not  having  happened,  his  represen- 
tative was  entitled. 

And  where  a  testator  gave  40/.  per  annum,  part  of  a  sum 
of  annuities,  in  trust  to  pay  the  dividends  to  S.  B.,  for  life, 
for  her  separate  use ;  and,  after  her  decease,  upon  trust  to 
transfer  the  said  sum  of  40/.  per  annum,  or  the  stock  or 
fund  wherein  the  produce  might  be  invested,  to  P.  S.  and 
S.  S.  S.,  in  equal  moieties;  and,  in  case  of  the  death  of 
either  of  them  in  the  lifetime  of  S.  B.,  then,  he  gave  the 
whole  to  the  survivor  living  at  her  decease.  P.  S.  and  *S'. 
S.  S.  both  died  in  the  lifetime  of  S.  B.  Sir  R.  P.  Arden, 
M.  R.,  held,  that,  as  in  the  case  of  real  estate,  they  took 
vested  interests,  subject  to  be  devested  on  a  contingency  that 
had  not  happened. 

III.  But,  a  limitation  which  is  simply  an  alter-  694 

native  limitation,  will  be  allowed  to  take  effect,  if, 
in  any  way,  the  next  preceding  limitation  fails  to  take  any 
effect,  even  though  the  precise  event  on  which  such  alter- 
native limitation  is  to  take  effect  never  happens. 

It  is  considered  that  the  testator  intended  that  so  695 

long  as  the  preceding  limitation  fails  of  taking 
effect,  whether  in  the  event  specified,  or  in  any  other,  the 
alternative  limitation  shall  operate  in  lieu  of  it:  for,  as  the 
condition  on  which  a  mere  alternative  limitation  is  rnade  to 
depend,  is  not  of  such  a  nature  as  to  constitute  intrinsically 
any  ground  or  reason  for  the  testator's  bounty  towards  the 
objects  of  the  alternative  limitation,  but  it  is  the  mere  nega- 
tion of  the  contingency  on  which  the  preceding  limitation 
depends;  it  is  more  consonant  to  sound  construction,  not  to 
rcard  it  in  the  light  of  an  ordinary  condition  precedent, 
constituting  a  literal  pre-requisite  to  the  vesting  of  the  inter- 
est, but  to  view  it  as  amounting  to  a  general  expression  of 
an  intention,  that  in  the  event  of  the  failure  of  such  preced- 
ing interest,  another  should  take  effect  in  its  stead. 

A  testatrix  directed  the  interest  of  her  residuary  estate  to 
be  applied  in  defraying  the  expenses  of  the  education  of  her 
nephews  George  and  Charles;  and  the  principal  to  be  ap- 
plied, either  in  binding  them  apprentices  at  the  age  of  14,  or 
to  be  reserved  till  they  attained  21,  to  commence  business. 
And,  in  the  event  of  George  and  Charles  (both  or  either  of 
them)  being  settled  before  the  will  should  come  in  force,  she 
provided,  that  the  next  boy  {James  or  Henry)  should  "  have 
the  benefit,  and  so  on."  George  and  Charles  survived  the 
testatrix,  but  died  under  21,  before  the  principal  was  applied 
in  binding  them  apprentices.  Sir  L.  Shadwell,  V.  C,  said, 
that  the  intention  of  the  testatrix  was,  to  make  a  provision, 


Iir.  2. 1  OF  EXECUTORY  INTERESTS.  [§G9G.        [   3S2  ] 

out  of  the  fund,  for  two  of  her  brother's  sons;  and  if  the 

provision  failed  as  to  either  George  or  Charles,  that  James 

slioiild  be  supported  out  of  it;  and  if  it  failed  as  to  both  of 

them,  then,  that  Henry  should  be  sujiported  out  of  it. 

And  where  a  testator  bequeathed  the  interest  of  a  sum  of  Alton  v. 

stock  to  ^^.  and  B.,  for  their  lives;  and,  after  their  deaths,  Brooks,  7 

he  directed  his  trustees  to  transfer  the  capital  to  their  chil-  ^^"^-  20-1. 

dren  then  living  who  should  attain  21;  with  a  proviso,  that  ^^"^  ^^^'^ 

in  case  either  of  them,  ^J.  and  B.,  should  liave  any  child  or  Brn'lford  v. 

children  living  at  the  time  of  their  respective  deceases,  but  ^'^     '^y,^"^'^' 

which  should  all  die  before  21,  then,  his  trustees  should  as-  l^f^P-  "'^j  ^s 

sign  the  share  of  the  legatee  so  dying  without  issue,  to  enjoy  .,,'      '   ^„ . 

as  aforesaid,  unto  the  survivor  of  tliem  the  said  ./?.  and  B.     ,'•  ,    '"     ' 
/I    1-    1    1        •  111        1  •       1      ,        n      r  1    which  was  a 

*^.  died,  Icavuig  a  child,  who  attauied  21.     B.  afterwards  ^,^gp  ^^^.^^^j 

died,  without  having  had  any  issue.  Sir  L.  Shadwell,  V.  ^'^^g^^Q 
C,  held,  according  to  Mackinnon  v.  Sewel/,  that  the  limita- 
tion over  took  effect,  and  .^.'s  personal  representative  was 
entitled  to  B.'s  moiety  of  the  stock.  His  Honour  observed, 
tliat  he  could  not  but  think  that  the  testator  intended  the 
limitation  over  to  take  eifect  in  the  event  of  either  of  the  first 
takers  not  having  a  child  to  take,  as  well  as  in  the  event  of 
cither  of  them  not  having  a  child  who  should  take  so  as  to 
enjoy  ;  and  that  the  word  "  survivor"  must  of  necessity  be 
taken  to  mean  "other;"  for,  the  testator  contemplated  [/.  e. 
intended  to  provide  for]  the  event,  not  of  one  of  the  legatees 
dying  in  the  lifetime  of  the  other,  but  of  one  of  them  dying 
childless. 

Without  diflering  from  the  learned  Judge,  in  his  opinion  Obsorvafion 
that  Mackimion  v.  Sewell  governed  this  case,  it  may  be  on  Ailon  v. 
useful  to  observe,  that  Mackinnon  v.  Seivcll  was  the  case  UrooUs. 
of  a  conditional  limitation  allowed  to  operate  as  an  alterna-  See  §  671-2. 
tive,  in  the  events  that  happened ;   but,  in  this  case,  the 
limitation  is  simply  an  alternative,  to  take  effect  in  case  the 
limitation  to  the  children  should  never  vest. 


CHAPTEK  THE  SECOND.         [  3S3  ] 

OF    THE    EFFECT     OF     THE     ORIGINAL     INVALIDITY     OR     THE 
EVENTUAL    IMPOSSIBILITY    OF    CONDITIONS. 

69G  Without   entering   minutely    into    the    question.  What  condi- 

what  conditions  are  void,  which  is  a  subject  fully  tions  are 
discussed  under  the  head  of  conditions  in  the  text  books  and  void, 
abridgments,  it  may  here  be  observed,  that  conditions  are 
void, 


[  3S3  J        III.  2.]  AN  ORIGINAL  VIEW  [§697,  698. 

1.  Morally         1.  -'If  they  require  the  performance  of  an  act  which  is 
wrong  01-        morally  wrong  or  civilly  unlawful. (^^z) 

civilly  un-  2.  '•If  they  are  repugnant  to  a  rule  of  law  :  as  where  the 

iawiiil.  condition  is  a  condition  at  common  law,  to  defeat  a  part 

2.  Repug-      oj^jy  of  ^^i-j  estate  tail.(Z>) 

nant  to  a  g^  cjf  ^jjgy  c^^q  contrariant  in  themselves:  as  in  the  case 

rule  of  law.    ^^  ^  proviso  for  determining  an  estate  tail  as  if  tenant  in  tail 

.  Lontra-      v\'ere  dead,(c)  without   adding  any  such  words  as  '^"and 

,,         ,  there  were  a  general  failure  of  issue  inheritable  under  the 

themselves.  .,  ,,,  ,.       ° 

4   Uncertain  entaiL"(^) 

or  ambi^u-         "*•  ''If  t-'^ey  are  uncertain  or  ambiguous:  as  in  the  case  of 

ous.      °        ^  proviso  against  advisedly  and  effectually  attempting  &c. 

5.  Restrain-    to  alien. (e) 

ins;  from  suf-      5.  ^If  they  restrain  tenant   in  tail   from  suffering  a  re- 

fering  a  re-    covery,  or  levying  a  fine  within  the  statutes  of  4  Hen.  VII. 

covciy  or       c.  24,  and  32  ITcn.  VIII.  c.   36  ;(/)  and  not  from  levying 

[  384  ]        or  making  &a  mere  fine  at  comm.on  law,  feoffment  or  other 

levying  a       tortious  discontinuance  or  alienation, (^)  or  •'a  sale  or  lease 

fine  within     before  a  certain  age. (A) 

Stat.  4  II.  6.  ^If  they  are  impossible  at  the  time  of  their  creation,  or 

VH.  and  32  afterwards  become  so,  by  the  act  of  God,  by  the  act  of  law, 

II.  \1II.        Qf  by  ^\^Q  ^(.[  Qf  [\^Q  party  who  is  entitled  to  the  benefit  of 

6  Impossi-    them.(/) 

^   •  7.  If  the  contingency  is  too  remote  a  possibility.  697 

A  00  re-      k^  limitation   may  be  made  to  depend  on  any 
mo  e  }  pos-    j-jy^^gj.  of  contingencies,  even  though  they  may  be  cn- 
,      ■  .  grafted  on  each  other,  so  long  as  each  amounts  to  a  common 

hat  IS  too  proi^jjijiiity^  j^,^j  so  long  as  they  may,  according  to  common 
remo  c  a  probability,  grow  out  of,  or  be  connected  with,  each  other, 
^  ^*     in  the  maimer  specified  by  the  instrument  contain- 

ing the  limitation.     But  a  limitation   is    invalid,  698 

when  made  to  depend  on  a  single  contingency,  if 
it  is  made  to  depend  on  a  remote  possibility,  or  when  made 
to  depend  on  two  contingencies,  if,  according  to  common 

(a)  See  Fearne,  249,  276.  (h)  Ih.  252. 

(c)  Corbet's  Case,  1  Rep.  83  b ;  Jermyn  v.  Ascot,  1  Rep.  65  a ;  and  Cholme- 
ley  V.  Humble,  1  Rep.  86  a ;  as  stated,  Fearne,  253.  Sec  also  Pksington's 
Case,  as  stated,  Fearne,  256. 

(d)  Fearne,  254,  note  (e). 

(e)  Mildmay's  Case,  6  Rep.  40 ;  and  Foy  v.  J.  Hynde,  Cro.  Jac.  696—7; 
as  stated,  Fearne,  255,  256. 

(/)  Mary  Portingtori' s  Case,  10  Rep.  36  ;  and  Sonday's  Case,  9  Rep.  128  ; 
as  stated,  Fearne,  258.  See  also  remarks  on  Rudhall  v.  Milward,  Savile,  76  ; 
Fearne,  259. 

{g)  Fearne,  259,  260.  Pearce  v.  Win,  1  Vent.  321;  and  Crokerv.  Trevithin, 
Cro.  Eliz.  35,  and  1  Leon.  292 ;  as  stated,  Fearne,  260. 

(h)  Spilth  and  Davie's  Case,  2  Leon.  38;  Moor,  271;  as  slated,  Fearne,  261. 

{i)  2  Bl.  Com.  15G,  157;  Prest.  Slicp.  T.  129 ;  and  Shep.  T.  132,  133. 


III.  3.]      OF  EXECUTORY  INTERESTS.  [§G99— 703.        [  384  ] 

probability,  they  do  not  grow  out  of,  or  arc  not  connected 
with,  eacli  otiicr,  in  the  manner  specified. (Ar) 

699  I.  'It'  u  void  condition  is  prcct.dent,  the  interest  I.  EfTeci  of 
which  is  to  vest  on  the  fulfilment  thereof  can  never  theinvalidity 
take  effect.     (See  §  13.)  of  conditions 

700  II.  If  the  void  condition  is  subsequent,  as  t lie  Precedent, 
estate  to  whicli  it  is  annexed  cannot  be  defeated  if.  EfTcct  of 

by  it,  such  estate  is  absohite  in  the  first  instance,  or  after-  theinvalidity 
wards  becomes  so.(/)  of  conditions 

subsequent. — Sec  §  12, 15-19. 

700a  III.  If  the  void  condition  is  a  mixed  condition,  m.  Effect  of 

tlie  preceding  estate  intended  to  be  annihilated  by        r  335  1 
it,  is  absolute  in  the  first  instance,  or  afterwards  becomes  so;  theinvalidity 
and  the  estate  to  arise  or  be  accelerated  on  the  fulfilment  of  of  a  mixed 
the  condition  cannot  arise  or  be  accelerated.  condition. 

See  §14,  20-22. 

701  IV.  And  '"if  the  condition  is  of  that  species  IV.  EfTect  of 
which  are  termed,  in  a  preceding  chapter,  special  theinvalidity 

or  collateral  limitations,  the  effect  is  the  same  as  if  if  were  f'f  a  special 
a  proper  condition  subsequent. (m)     See  §  3,  7,  12,  24 — 43.  or  collateral 

limitation. 


CHAPTER  THE  THIRD.  [  ssG  ] 

OP    THE    TIME    FOR    THE    VESTING    OF    REMAINDERS. 

702  I.  " "  It  is  a  general  rule,  that  every  remainder  must  I.  A  remain- 
vest  cither  during  the  particular  estate,  or  else  at  der  must  vest 

the  very  instant  of  its  determination. "(«)     Or,  to  state  the  during,  or  on 
rule  somewhat  more  precisely,  a  contingent  remainder  can-  the  detenni- 
not  vest  at  all,  unless  it  vests  during  the  existence  of  a  pre-  "^^i'^"  "f)  the 
vious  estate  of  freehold,  or  at  least  at  the  very  instant  of  P>'^'"''c'u'''ii' 
the  determination  of  the  sole  or  last  subsisting  previous  ^^^''*^^- 
estate  of  freehold. 

703  ""This  rule,"  observes  the  learned  authority 
upon  this   subject,  "was  originally  founded   on 

(k)  See  Fcarnc,  2.30—2.32,  and  Butler's  note  (r). 

(/)  2  Bl.  Com.  loO,  1;37;  Pres.  Shep.  T.  129;  and  Shep.  T. 
132,  133. 

(m)  See  Shep.  T.  133.  See  also  Aislahic  v.  Rice,  3  Mad.  260, 
for  an  instance  of  the  eircct  of  the  eventual  impossibility,  by  the 
act  of  God,  of  an  irre<2;ular  collateral  limitation.  Sec  §  39. 

(a)  Fearne,  307,  308.  And  see  Doc  d.  Mussel  v.  Morgan,  3 
Durn.  &  East,  763,  as  stated,  Fcarnc,  309. 


[  386  ]        III.  3.]  AN  ORIGINAL  VIEW       [§703a— 704. 

feodal  principles,  and  was  intended  to  avoid  the  inconve- 
niences which  might  arise,  by  admitting  an  interval,  when 
there  should  be  no  tenant  of  the  freehold  to  do  the  services 
to  the  lord  or  answer  to  strangers'  praecipes;  as  well  as  to 
preserve  an  uninterrupted  connexion  between  the  particular 
estate  and  the  remainder,  which,  in  tlie  consideration  of  law, 
are  but  several  parts  of  one  whole  estate, "(a)  Some  further 
observations  upon  the  point  will  be  found  in  a  subsequent 
chapter, 

II.  A  remain-      U.  ^"It  follows,  that  an  estate  limited  on  a  con-         703a 
dcr  may  fail  tingency,  may  fail  as  to  one  part,  and  take  effect 

as  to  one       as  to  another,  wherever  the  preceding  estate  is  in  several 
part  only.      persons  in  common  or  in  severalty;  for  the  particular  tenant 
of  one  part  may  die  before  the  contingency,  and  the  par- 
ticular tenant  of  another  part  may  survive  it,"(/;) 
[  387  ]  III.  '^"  So  likewise  a  contingent  remainder  may          703b 

III.  A  re-       take  effect  in  some,  and  not  in  all  the  persons  to 
maindermay  whom  it  was  limited;  according  as  some  may  come  in  esse 
fail  as  to        before  the  determination  of  the  preceding  estate,  and  others 
some  persons  not, "(c) 

o"'y-  For,  an  estate  by  way  of  remainder,  when  it  704 

A  remainder,  has  once  vested  in  possession  in  some  person  or 
when  it  has  persons,  cannot  afterwards  open,  so  as  to  let  in  others  who 
once  vested  ^yere  not  in  esse  till  after  the  determination  of  the  particular 
in  posses-  estate;  though  '^  where  it  has  only  vested  in  interest,  it  will 
sion,  and  not  opgi-,^  go  as  to  let  in  others  who  become  capable  of  taking 
merely  m  m-  tq^^q^q  [\^q  remainder  has  actually  vested  in  possession,  that 
tcrest,  m  j^^  before  the  determination  of  the  particular  estate. (g?) 
some  per-  ^^^  other  words,  where  real  property  is  limited,  by  way  of 

sons*  c3.nnot  .     -,  t  ^  '  ^\      c       \ 

open  and  let  remamdcr,  to  a  class  of  persons,  some  or  all  ot  whom  are 
in  others  unborn;  if  any  of  them  come  in  esse  before  the  determina- 
tion of  the  particular  estate,  the  property  will  vest  in  such 
person  or  persons,  subject  to  open  and  let  in  the  other  mem- 
bers of  the  class,  who  may  happen  to  come  in  esse  before 
the  determination  of  the  particular  estate.  But  those  who 
are  born  after  the  determination  thereof,  will  be  excluded  : 
for,  a  similar  rule  to  that  which  applies  to  an  entire  property 
limited  in  remainder  to  one  person,  requiring  that  it  should 
vest  before  that  period,  applies  to  the  individual  share  of 
any  property  limited  to  a  class  of  persons. 

(a)  Fcarne,  307,  308.  And  sec  Doe  d.  Mussel  v.  Morgan,  3  Durn.  &  East, 
7G3,  as  stated,  Fearnc,  309. 

(h)  Fearne,  310;  and  Lane  v.  Pannel,  1  Roll.  Rep.  238,  317,  438,  as  tliere 
staled. 

(c)  Fearne,  312. 

{d)  Doe  d.  Comberhach,  v,  Perryn,  3  Durn.  &  East,  484  ;  Doe  d.  Willis, 
V.  Martin,  4  Durn.  &  East,  39,  as  stated,  Fearne,  314;  Matthews  v.  Temple, 
Comh,  467,  as  stated,  Fearne,  313. 


III.  3.J         OF  EXECUTORY  INTERESTS.  [§705.        [  ^^7  J 

705  The  application,  however,  of  such  a  rule  to  the  (Jroiinds  of 

vesting  of  the  individual  shares,  after  the  aggre- tlie  third 
gate  property  has  vested  iu  some  one  of  the  class,  must  dc-  ru'e. 
pend  on  dilterent  reasons  from  those  above  mentioned  in  .Sue  §  703. 
relation  to  an  entire  property  limited  in  remainder  to  one 
person  :  since  there  i.s  a  tenant  of  the  freehold,  and  there  is 
an  unintcrrujited  connexion  between  the  particular  estate 
and  llie  remainder.     The  application  of  the  rule  to  the  vest- 
ing  of  the   individual  shares,  in  the    given  case,  appears 
rather  to  be  grounded  upon  a  principle  of  convenience,  and 
10  be  analogous  to  those  cases  of  personal  estate  bequeathed        [  388  ] 
to  a  class  of  persons,  in  which  those  alone  are  admitted, 
who  come  in  esse  before  the  period  of  distribution. 

A  testator  devised  the  residue  of  freehold  estates,  called  Mogg  v. 
the  Littleton  estates,  to  trustees,  during  the  life  of  his  son,  Moi^f.^,  1 
J.  II. ,  upon  certain  trusts;  remainder  to  his  son's  children,  Meriv.  U51. 
for  their  lives  ;  and,  from  and  after  their  decease,  he  devised 
the  same  unto  their  lawful  issue,  to  hold  unto  such  issue  and 
their  heirs,  as  tenants  in  common,  without  survivorship ;  and, 
in  default  of  such  issue,  he  devised  to  the  children  of  his 
daughter,  S.  M.,  and  their  issue,  in  the  same  words  ;  and,  in 
default  of  such  issue,  to  certain  other  persons,     J.  II.  died, 
without  ever   having  a   child.     S.  M.  had  nine  children. 
The  Court  of  King's  Bench  certified,  that  six  of  tlie  nine 
children  of  S.  M.,  namely,  five  who  were  born  in  the  life- 
time of./.  //.,  and  one  who  was  iJi  ventre  malris  at  the 
death  of  J.  11.,  took  estates  in  tail  general,  with  cross  re- 
mainders ;  but  that  the  other  children  took  nothing. 

As  to  the  reason  for  excluding  the  three  otlier  children,  it  Observation 
is  a  rule,  that  a  limitation  shall  not  be  construed  as  an  on  tliis  part 
executory  devise,  which  may  be  supported  as  a  remainder;  of  the  case, 
and  hence  the  limitation  to  the  children  of  S.  31.  was  doubt- 
less considered  to  be  a  remainder  expectant  on  the  decease 
of  J.  H. ;  and,  being  a  remainder,  it  was  necessary  that 
those  who  were  to  take  under  such  limitation,  should  be  in 
esse  at  the  determination  of  the  particular  estate,  that  is,  at 
the  death  of./.  //. 

The  testator  devised  other  parts  of  the  Littleton  estates  to  .s.  C.  1 
his  wife,  for  life  ;  and,  after  her  decease,  to  the  same  uses  as  Mcriv. 
in  the  devise  last  stated.  The  Court  certified,  that  all  the 
nine  children  of  S.  M.  took  under  this  devise,  in  manner 
aforesaid,  all  being  born  in  the  widow's  lifetime,  and  there- 
fore capable  of  taking  on  the  determination  of  the  particular 
estate,  that  is,  of  her  life  estate. 

The  testator,  (according  to  a  fictitious  clause  inserted  in  S.  ('.  1 
the  case  stated   to  the  Court)  devised  another  lee  simple  Mcris'. 
estate,  called  the  Upper  JNIark  Estate  (without  any  previous 
limitation)  to  the  children  of  S.  M.,  and  their  issue,  in  the 
same  words  as  before.     The  Court  cerlilied,  that  all  the 
nine  children  took  in  maimer  aforesaid. 


[  3SD  ]        III.  3.1  AN  ORIGINAL  VIEW  [§705. 

Observation  It  would  seem  that  this  must  have  been  regarded,  not  as 
on  this  part  a  purely  immediate  devise,  though  S.  M.  had  two  children 
of  the  case,  born  before  tlic  date  of  the  will,  but  as  a  sort  of  mixed  de- 
Sce  §  111,  vise,  immediate  in  regard  to  the  children  born  at  the  date  of 
Ilia.  the  will,  and  executory  in  regard  to  the  children  born  after- 

wards.    (See  Fearne,  533 — 7.) 
S.  C.  1  The  testator  devised  another  fee  simple  estate,  called  the 

Meriv.  Mark  Estate  (or  Lower  Mark  Estate,  to  distinguish  it  from 

the  fictitious  estate  above   mentioned)  to  trustees,  for  the 
maintenance  of  the  children  of  S.  M.,  during  their  lives ; 
and,  after  their  decease,  he  gave  the  estate  to  the  lawful 
issue  of  such  children,  in  the  same  words  as  before.     The 
Court  certified,  that  the  issue  of  such  of  »S'.  il/.'s  children  as 
were  born  prior  to  the  testator's  decease  [i.  e.  the  issue  of 
four  of  her  children]  took,  as  tenants  in  common  in  fee 
simple,  expectant  upon  the  determination  of  the  estate  limited 
to  the  trustees. 
Observations      Here,  the  word  issue  was  construed  a  word  of  purchase, 
on  this  part^  because,  the  interest  given  to  the  children  of  >S'.  M.,  being 
of  the  case,    merely  equitable,  could  not  unite  with  the  legal  interest 
limited  to  their  issue.     The  issue  of  the  other  children  were 
necessarily  excluded;  because,  the  unborn  issue  of  parents 
See  §j06,     ^y^Q  are  themselves  yet  unborn,  cannot  take  by  purchase, 
/09,  710.       ti-,g^^  being  contrary  to  the  rule  against  perpetuities. 
S-  C.  1  The  testator  (according  to  the  case  stated  to  the  Court) 

Meriv.  also  devised  leaseholds  for  lives  and  years,  so  that  the  issues 

and  profits  might  belong  to  the  children  of  *S'.  M.,  and  so  on 
as  before.  The  Court  certified,  that  all  the  nine  children 
Sec  §  100-3.  took  the  absolute  interest  in  the  leaseholds  for  years;  and 
that  they  took  interest  in  the  nature  of  estates  tail,  with 
limitations  thereupon  in  the  nature  of  cross  remainders,  in 
the  leaseholds  for  lives. 

The  certificate  was  confirmed  by  Sir  W.  Grant,  M.  R. 

Observations      And  in  Doe  d.  Long  v.  Prigg.  I3ayley,  J.,  said,  "  There 

ofBayley,!.,  is  no  dottbt  but  that  upon  an  ordinary  limitation  by  way  of 

in  Doc  (J,       remainder  to  a  class,  as  children,  grand-children,  &c.,  all 

Long  V.         who  come  in  esse  before  the  particular  estates  end,  and  the 

Pri<j;g,  8       limitation  takes  effect  in  possession,  are  to  be  let  in,  and  take 

[  390  ]        a  vested  interest  as  soon  as  they  come  in  esse;  and  that  they 

Bar.  &  Ores,  and  their  representatives  will  take  as  if  they  had  been  in 

'^'^•^'  esse  at  the  testator's  death.     This  is  settled  by  Baldwin  v. 

Carver,  1  Cowp.  309  ;  Boe  v.  Perryn,  3  T.  R.  484 ;  Doe 

V.  Dorrell,  5  T.  R.  518;  Meredith  v.  Meredith,  10  East, 

303 ;  and  llight  v.  Creber,  5  Bar.  &  Cres.  86G." 


III.  4.  i.]  OF  EXECUTORY  INTERESTS.  [§700—707.        [  COl  ] 


CHAPTER  THE  FOURTH. 


OF  THE  TIME    KOU    THE    VESTING    OF    EXECUTOUY  INTERESTS 
NOT  LI.MITEIl   RV   WAY   OF  REMAINDER. 


SECTION  THE  FIRST. 

The  General  Rule  against  Perpeluities  stated  and 
Explained. 

706  ■  Executory    interests,  other    than  those  in    re-  The  rule 
mainder  after  or  cn^^rafted  on  an  estate  tail, (a)  stated. 

must  he  so  Hmited,  tliat,  from  the  first  moment  of  their  hmi- 
tation,  it  maybe  said  that  they  will  necessarily  vest  in  right, 
if  at  all,  within  the  period  occupied  by  the  life  of  a  person  in 
being,  that  is,  already  born,  ''or  in  ventre  matris.{b)  ox  the 
hves  of  any  number  of  persons  described  and  in  being, 
'  "not  exceeding  that  to  which  testimony  can  be  applied  to 
determine  when  the  survivor  of  them  drops,"(c)  and  by  the 
infancy  of  any  child  born  previously  to  the  decease  of  such 
])erson  or  persons,  or  ''the  gestation  and  infancy  of  any 
child  in  ventre  matris  at  that  time;(A)  or,  ^  witliin  the  period 
occupied  by  the  life  or  lives  of  such  person  or  persons  in 
being,  and  an  absolute  term  of  21  years  afterwards,  and  no 
more,  without  reference  to  the  infancy  of  any  person;  (c^)  or, 
within  the  period  of  an  absolute  term  of  21  years,  without 
reference  to  any  life, 

707  ^The  reason  why  some  kind  of  limit  is  pre-  Reason  for 
scribed  for  the  vesting  of  such  executory  interests,  fiximralitnit. 

is,  that  executory  interests  (other  than  those  which  are  in  [  392  ] 
remainder  after  or  engrafted  upon  an  estate  tail,  and  which 
were  capable  of  being  destroyed  by  the  tenant  in  tail  by 
means  of  a  recovery,)  cannot  be  destroyed  by  the  prior  de- 
visees or  legatees;  and  they  therefore  tend  to  a  perpetuity, 
by  being  unalienable  until  the  contingency  happens  on 
which  they  are  to  vest  in  right,  which  is  inconsistent  with 

(n)  See  Fearnc,  565,  note,  and  567,  note.     And  see  Fearne,  429 — 443, 
(6)  Lonir  V.  lilackall,  7  Durn.  &  East,  100,  as  stated,  Fearne,  434,  note(/). 
(r)  Lord  Eldon  in  Tlirlhisson  v.  Woodford,  11  Vcs.  146. 
{d)  Bmgou^h  V.  Edrids^e,    1    Sim.   273;  S,   C.  »om.  Cadcll  v.  Palmer,  1 
Clark  &  Fin.  372,  and  10  Oing.  140, 
Vol.  II.  — 10 


[  392  ]        III.  4.  ii.]  AN  ORIGINAL  VIEW  [^708—710. 

the  welfare  of  the  state,  and  therefore  contrary  to  the  policy 
of  the  la\v.(/) 
Reason  for         Nor  iiove  the  particular  limits  so  prescribed  been  70S 

adopting  the   arbitrarily  adopted.     ^The  Court,  in    setting  the 
limits  fixed     bounds  they  have  to  the  suspension  of  the  vesting,  have 
by  the  rule,    been   governed  by  analogy  to  the  case  of  a  strict  entail, 
which  could  not  be    protected  from  fines  and   recoveries, 
longer  than  for  the  life  of  the  tenant  for  life  in  possession, 
and  the  attainment  of  21  by  the  first  issue  in  tail.(5-) 

SECTION  THE  SECOND. 

Rules  of  a  more.  Specific   Character  for  determining 
whether  or  not  a  Limitation  is  too  Remote. 

I,  Limitation      I.  It  will  appear  from  the  above  statement  of  the  709 

must  be  such  rule,  that  ''  to  render  a  gift  valid,  it  is  not  enough 
as  must  take  that  it  may  take  effect  within  a  life  or  lives  in  being  and  21 
effect  within  years  afterwards;  or,  that,  in  the  events  which  have  happen- 
the  prescrib-  ed,  it  would   take  effect  within  that  period,  though,  under 
ed  period.       other  circumstances,  it  might  not :  it  must  have  been  so 
limited,  that,  from  the  first  moment  of  its  limitation,  it  may 
be  said  that  it  will  necessarily  take  effect,  if  at  all,  within 
one  of  the  periods  above  mentioned. (A) 
Hence  limi-        And  hence,  it  follows,  that  real  or  personal  estate  710 

tations  to  cannot  be  limited  to  the  children  of  a  person  who 
children  of  is  not  in  esse  at  the  date  of  the  will,  so  as  to  enable  such 
persons  not  children  to  take  as  purchasers,  even  though  their  parent  may 
in  esse  at  the  happen  to  be  born  before  the  death  of  the  testator,  unless 
[  393  ]  the  testator  expressly  limits  the  property  to  the  children  of 
date  of  will,  a  person  who  shall  be  born  in  his,  the  testator's,  lifetime, 
are  not  good.  Thus,  where  a  testatrix  gave  one  moiety  of  a  certain 
Arnold  V.  amount  of  stock  to  her  son's  eldest  male  child  living  at  her 
Congreve,  1  demise,  for  life ;  with  remainder  to  the  issue  of  that  male 
Russ.  &  M.  child;  and  the  other  moiety  to  the  other  unborn  children  of 
209.  her  son,  for  life;  with  remainder  to  their  issue.    The  limitation 

to  the  issue  of  her  son's  eldest  male  child  was  held  good; 
because,  the  testatrix,  by  adding  the  qualification  "  living  at 
my  demise,"  had  confined  the  vesting  of  the  interest  of  that 
male  child's  issue  to  the  period  prescribed  by  the  rtile  against 
perpetuities.  But,  the  limitations  to  the  issue  of  the  other 
unborn  children  of  her  son  were  void,  though  such  children 
happened  to  be  born  in  the  lifetime  of  the  testatrix,  because, 
the  birth  and  death  of  sucli  other  unborn  children  of  the  tes- 
tatrix's son,  and  the  birth  of  their  issue,  miglit  not  have  hap- 
pened within  the  period  of  a  life  or  liv'cs  in  being,  and  21 
years  afterwards. 

(/)  See  Fearne,  418—428,  and  556—567,  note.         ^ 
(g)  Fearne,  444,  note  (a),  and  566,  note. 
(h)  See  Palmer  v.  Holford,  1  Russ.  40:3, 


III.4.  ii.]  OF  EXECUTORY  INTERESTS.  [§710a— 712.        [  393  ] 

710a  And  "as  the  law  does  not  permit  to  be   done  Nor  are 

indirectly,  what  cannot  be  elTected  in  a  direct  man-  clauses  de- 

ner,  the  rule  whicii  forbids  the  giving  of  an  estate  to  the  signed  indi- 

issue  of  an  unborn  person,  equally  invalidates  a  clause  in  rcctly  yet 

a  settlement  or  will  containing  limitations  to  existing  persons  virtually  to 

for  life,  with  remainder  to  tiicir  issue  in  tail,  empowering  jimji  estates 

trustees,  on  the  birth  of  each  tenant  in  tail,  to  revoke  the    .    '*     , 

,  ,•     •  r      1  w    X  \    ■    r    \       -.t  ■      oi  an  unborn 

uses,  and  hnnl  an  estate  for  life  to  such  mfant,  wuh  remain-    ^^^^^  ^g 

der  to  hisissue/'(0  purchasers. 

711  II.  But,  it  will  appear,  from  the  above  statement  j.^._ 

of  the  rule,  that  limitations  to  the  unborn  children  .  ;■    "    ' 
-  .  '  ,  ,-,11  III.  tations  to 

of  persons  m  esse,  at  the  date  of  the  deed  or  will,  whatever  y^)^^,.„  ^.j,ji. 

may  be  the  quantity  of  the  interest  limited  to  them,  are  not  jj.^,|  ofper- 

too  remote,  inasmuch  as  such  unborn  children  must  come  ^q^^  ^^  ^^^g 

into  existence,  if  at  all,  within  the  compass  of  a  life  in  being,  ^-e  "ood. 

namely,  the  life  of  their  parent. 

712  There  are,  indeed,  certain  dicta,  and,  in  fact,  an        [  394  ] 
actual  but  anomalous  decision,  which  might  seem  it  has  been 

to  prove  that  a  life  interest  cannot  be  limited  to  an  unborn  thought  that 
person,  unless  at  least  the  remainder  vests  at  the  same  time,  a  life  interest 

Thus,  where  a  testatrix,  after  expressing  her  desire,  that  cannot  be 
a  certain  sum  should  remain  in  the  3  per  cents,  for  ever,  be-  limited  to  an 
queathed  the  dividends  to  her  seven  children,  for  their  lives;  unborn  per- 
and  directed,  that  in  case  of  the  decease  of  any  of  them,  son. 
their  annuity  should  devolve  among  the  rest  of  the  surviving  Hayes  v. 
children ;  but,  after  the  decease  of  the  whole  of  them,  then  Hayes,  4 
should  their  children  succeed  severally  to  the  annuity  of  R"ss.  311. 
their  deceased  parent;  and,  after  the  decease  of  her  seven 
children's  children,  the  dividend  arising  from  the  above  sum 
should  devolve  in  annuities  upon  her  lawful  heirs  for  ever. 
Sir  John  Leach,  M.  R.,  said,  "  The  true  effect  of  this  will  is, 
a  limitation  to  the  seven  children  for  life  ;  with  remainder  to 
their  children,  whether  born  or  unborn  at  the  death  of  the 
testatrix,  for  their  iives;  with  a  contingent  remainder  over 
to  persons  who  shall  answer  a  particular  description,  at  the 
death  of  the  surviving  grandchild.     This  is  plainly  too  re- 
mote.    You  cannot  limit  to  an  unborn  person  for  life,  unless 
the  remainder  vests  in  interest  at  the  same  time.     The  gift 
to  the  children  of  the  children  is  therefore  void:   and  the 
seven  children,  who  take  life  interests  under  the  will,  being 
the  next  of  kin,  are  entitled  to  the  remainder,  as  undisposed 
of." 

This  decision,  as  regards  the  grandchildren,  appears  to  be  Observations 
clearly  erroneous.     The  gift  over  to  the  lawful  heirs  of  the  on  Hayes  v. 
testatrix  was  obviously  too  remote.     But,  in  what  way  the  Hayes. 
invalidity  of  that  limitation  could  atfect  the  preceding  gift 

(0  1  .Tarman  on  Wills,  247;  and   Duke  of  Marlhnrov^h  v,  Earl  (iodolphin, 
1  Ivlen,  404,  there  cited. 


[  394  ]        III.  4.  ii.]  AN  ORIGINAL  VIEW         [§713—714. 

to  the  grandchildren,  it  is  difllciilt  to  understand.  "The 
only  ellect,"  (as  was  contended  at  the  bar)  "of  the  remote- 
ness of  that  limitation,  was,  that  immediately  on  the  deatli 
the  testatrix,  the  ultimate  interest  devolved  to  the  next  of 
kin,  snbject  to  vested  life  interests  in  her  children,  and  con- 
tingent life  estates  to  unborn  grandchildren."  Had  there 
been  no  limitation  after  the  gift  to  the  grandchildren,  that 
gift  would  have  been  clearly  valid.  And  if  the  only  limita- 
tion after  such  gift  was  void,  that  gift  must  have  been  as 
valid  as  if  no  such  subsequent  limitation  had  ever  existed. 
[  395  ]  This  decision,  then,  must  be  regarded  as  contrariant  to  prin- 
ciple, and  it  is  also  opposed  to  the  current  of  au- 
An  estate  for  thorities.     A  learned  author(A)  has  remarked,  that  713 

life  may  be    the  validity  of  a  devise  to  an  unborn  person  for 
limited  to  an  life,  seems  to  have  been  settled  so  long  as  the  early  case  of 
unborn  per-    Cot  Inn  v.  IIeath;{l)  and  he  refers  to  several  cases  where  it 
son.  -^yjjs  assumed,  in    the  discussion  of  some   other   question, 

without  even  an  attempt  being  made  to  impeach  the  validity 
of  the  gift.(m)     And  he  adds,  that  the  validity  of  such  a 
devise  is  treated  by  rearne(?i)  "  as  a  point  rather  to  be  taken 
for  granted,  than  discussed." 
III.  Limita-        III.  It  is  obvious  that  if  a  limitation  is  to  take  714 

tions  on  an    effect  on  an  indefinite  failure  of  issue  in  general,  or 
indefinite        of  issue  male  or  female,  or  by  a  particular  marriage,  and  not 
(allure  of       "merely  on  a  failure  of  issue  within  a  life  or  lives  in  being 
issue.  ^j-,(j  21  years  and  a  few  months  afterwards  ;(o)  I'it  is  within 

the  foregoing  rule  against  perpetuities,  and  therefore  void 
for  remoteness ;(/?)  unless  it  is  a  remainder  after,  or  a  limita- 
See  §  706-7.  tion  engrafted  on  an  estate  tail;  or  ''a  limitation  of  a  sum  of 
money  to  be  raised  by  means  of  a  term  in  remainder  after 
[  39G  ]        an  estate  tail;(</)  or ''a  limitation  over  of  a  term  which  is 


{k)  Jarman  on  Wills,  340. 
(/)  1  Roll.  Ab.  612,  pi.  3. 

(?ffl)  Namely,  Doe  d.  Tooley,  v.  Gunnis,  4  Taunt.  313;  Doe  d.  Lwersage 
V.  Vavghan,   1  Dowl.  &  R.  52;   S.  C.  5  B.  &  Aid.  4G4 ;  AsJdey  v.  Jishlcy, 

0  Sim.  358  ;  Denn  d.  Briddon  v.  Page,  3  D.  &  E.  87  n. ;  11  East,  603 ;  Hay 
V.  Earl  of  Coventry,  3  D.  &  E.  83  ;  Foster  v.  Lord  Romney,  11  East,  594  ; 
Bennett  v.  Lowe,  5  Moo.  &  Pay.  485. 

(n)  Fcarnc,  503. 

(o)  Duke  of  Norfolk's  Case,  3  Chan.  Cas.  1;  Pollcx,  223;  and  Lamb  v. 
Archer,  1  Salk.  225,  as  stated,  Fearnc,  469,  470;  and  Soufhcy  v.  Lord  Somer- 
vile,  1 3  Ves.  486.    See  also  Nichols  v.  Hooper,  1  P.  W.  198  ;   Target  v.  Cai/nf, 

1  P.  VV.  432;  Keily  v.  Fowler,  6  Bro.  Pari.  Ca.  309;  and  other  cases,  stated, 
Fearne,  471 — 473,  and  supra.  Part  II.  c.  XVII.  sect.  T. 

{p)  Burford  v.  Lee,  2  Freem.  210;  and  Beauderk  v.  Dormer,  2  Atk.  308  ; 
as  stated,  Fearne,  480 — 2. 

(q)  Goodioin  v.  Clarke^  I  Lev.  35,  as  stated,  Fearne,  476. 


III.  4.  ii.]  OF  EXECUTORY  INTERESTS.  [§715— 711».        [  396  ] 

determinable  on  the  dropping  of  a  life  or  lives  in  being,(r) 
where  a  tenant  riulit  of  renewal  does  not  exist. (.s) 

715  Hero  two  preliminary  qucsiions  may  i)resent 
themselves:  First,  W'hetlier  the  words  really,  and 
not  merely  apparently,  import  such  an  indefinite 
failure  of  issue  ?      Secondly,  Whether  (if  they  do) 

716  an  estate  tail  is  created?  Because,  if  the  words 
do  not  import  such  indefinite  failure  of  issue,  or  if 
an  estate  tail  is  created ;  in  either  of  these  cases, 
the  limitation  may  be  good, 

717  The  reader  will  find  an  answer  to  these  ques- 
tions in  the  first  section  of  the  seventeenth  chapter 
of  the  Second  Part,  so  far  as  regards  real  estate. 

718  And,  as  regards  the  application  of  the  first  ques-  Answer  to 
tion  to  personal  estate,  the  answer  to  it  will  be  die  first 
found  in  the  rules  in  the  same  section.  question  as 

719  As  regards  the  application  of  the  second  ques-  regards  per- 
tion  to   personal  estate,  (namely,  whether  an  es-  ^°"^'  estate. 

tatc  tail  is  created?)  we  have  seen  in  the  eighteenth  chap-  I*ersonal  es- 
ter of  the   Second   Part,  that   personal   estate  cannot   be  ^^'^  cannot 
entailed,  and  that,  with  the  exception  of  the  words  "die  l)c  entailed, 
without  leaving  issue,"  the  same  words  which  would  create 
an  estate  tail  by  implication  in  real  estate,  in  favour  of  the 
person  the  failure  of  whose  issue  is  spoken  of,  will  serve  to 
confer  on  him  the  absolute  interest  in  personal  estate;  and  ^^^  a  limifa- 
conscqucntly,  that  the  limitation  over  of  personal  estate  on  ^'*J"_  over  on 
an  indefinite  failure  of  his  issue,  instead  of  being  good  as  a  ^"  indefinite 
remainder  after  an  estate  tail,  as  we  have  seen  it  would  be  ^^^"i^';^  of  is- 
in  the  case  of  real  estate,  is  a  conditional  limitation,  (See  §  ^"^'  '^  ^°'" 
148— 15S,)  which  is  void  for  remoteness.  '°'"  ^^'"^^'e- 

J3ut, 'as  regards  the  construction  of  a  limitation  over  of        ' 
personal  estate  in  the  event  of  death  without  issue,  it  makes         *^.*^*"" 
no  ditference  whether  the  first  taker  has  a  life  estate  only,  ''^  "!^  '°!!  ^. 

or  whether  he  is  held  to  take  a  oiiasi  estate  tail,(0  which  ,  ,• 

i  '\  f  tation  over 

amounts  to  the  same  as  a  limitation  of  the  absolute  interest.        r  on-j  -\ 

In  either  case,  the  limitation  over  is  void  for  remoteness,  j^  ^jj-^  same 

unless  it  can  be  collected  from  the  words  of  the  will,  that  the  where  the 

testator  meant  a  death  without  issue  at  :he  time  of  the  death  f,,.^^  taker 

of  the  first  taker.  has  a  life 

A  testator  gave  the  interest  of  his  residuary  personal  estate  estate  only. 

to  t/?.,  for  life;  and  then,  the  residue  to  her  nieces;  but,  \i Eccrest  \. 

they  die  without  issue,  over.     The  Lord  Chancellor  held,  Gell,  1  Vcs. 

that  the  limitation  over  was  too  remote;  and  that  on  the  2so. 

death  of  the  aunt,  the  nieces  took  the  whole. 

(r)  Sec  Fearnc,  489. 

(s)  See  Fearnc,  500,  note  (f),  and  Reporter's  Observations  on  Duke  of  Graf- 
ton V.  Ilanmcr,  3  P.  W.  266,  in  the  note,  as  cited,  Fearnc,  407. 
(0  Lvpinc  V.  Ferardy  2  Russ.  &  M.  378. 


[397]        ir.  4.  ii.]  AN  ORIGINAL  VIEW  [§719. 

Chandhss  v.  So  where  a  testator  gave  all  tlic  residue  of  his  real  and 
Price,  3  personal  property,  on  failure  of  legitimate  issue  by  his 
Vcs.  98.  daughter  M.  TV.,  to  his  daughter-in-law,  C  /.;  and,  after 
her  decease,  without  legitimate  issue,  to  S.  M.  Lord 
See  §  593—  Loughborough,  C,  said,  that  where  words  would  create  an 
600.  estate  tail  in  real  estate,  whether  express  or  implied,  they 

See  §  100-3.  give  the  absokue  interest  in  personalty,  unless  words  can 
be  found  in  the  will  "  to  tie  it  up,"  i.  c.  to  confine  the  inter- 
est to  a  mere  tenancy  for  life;  and  that  consequently  the 
limitation  to  ^S*.  M.  was  too  remote. 
Comphell  v.       So  where  a  testator  gave  to  his  natural  daughter,  a  sum 
Harding,  2  of  stock,  and  his  house  and  land  at  C;  but,  in  case  of  her 
Russ.  &  M.   death  without  lawful  issue,  then,  he  willed  the  money  so 
411;  Canih/  \q(i  [q  ^er  to  be  equally  divided  between  his  nephews  and 
V.  Campbell,  ,-,ieces  who   might   be   living  at  the   time,  and  the   land  at 
2  Clark  &      q    jq  ^^g  nephew.     And  he  directed,  that    if  she   should 
Fin.  421.       niarry,  the  property  should  be  solely  settled  upon  herself 
and  children,  and  in  no  way  changed  or  alienated.     It  was 
decided   by  the  Vice-Chancellor,  and  afterwards  by  Lord 
Brougham,   C,   and   subsequently,   upon    appeal,   by   the 
House  of  Lords,  that  the  daughter  took  the  absolute  in- 
terest in  the  stock,  and  that  the  bequest  over  was  void  for 
remoteness. 

The  grounds  of  the  decision  were  in  substance  these : — 
That  the  expression  "living  at  the  time,"  being  elliptical, 
so  far  from  aiding  the  case,  by  pointing  out  at  what  time  the 
contemplated  failure  of  issue  was  to  take  place,  itself  re- 
quired explanation  by  means  of  the  next  antecedent ;  and 
that  antecedent  was  the  datighter's  "death  without  issue," 
And  that  as  the  authorities  showed  that  the  expression, 
"  death  without  issue,"  denoted,  of  itself,  an  indefinite  fail- 
ure of  issue,  it  necessarily  followed,  that  the  expression 
[  39S  ]  "  living  at  the  time,"  {i.  e.  of  the  daughter's  death  without 
issue)  referred  to  a  living  at  the  time  when  there  should  be 
an  indefinite  failure  of  issue. 
Mo7iTihouse  Again,  where  a  testator  bequeathed  personal  property  to 
V.  Munk-  J.  A.,  eldest  son  of  M.  M.,  for  life  ;  and,  after  his  death,  to 
home,  3  his  eldest  son  lawfully  begotten,  for  life;  and  to  remain  en- 
Sim.  119.  tailed  on  the  eldest  son  descended  from  the  same  J.  Jl.  and 
his  posterity  from  one  generation  to  another  for  ever.  But 
in  case  of  death  or  want  of  issue  from  J.  A.,  then,  to  the 
second  son  of  M.  M.,  and  to  his  descendants,  as  above  men- 
tioned, from  one  generation  to  another  for  ever.  And  in 
case  of  his  death  or  want  of  issue,  to  the  third  son  ;  or,  if  no 
son,  to  a  daughter,  and  to  her  descendants,  in  manner  before 
mentioned.  J.  Jl.  died  intestate,  and  without  having  been 
married.  The  Vice-Chancellor  said,  that  the  testator  had 
not  spoken  of  any  son  except  the  eldest ;  but  it  appeared  he 
meant  all  the  sons  of  J.  A.  to  take;  for,  in  the  bequest  to 


III.  4.  li.]    OF  EXECUTORY  INTERESTS.  [§719.        [398] 

M.,his  expression  is,  "and  lojiis  descendants  as  above 
nienlioncd;"  and  therefore  it  must  be  taken  as  if  lie  had 
Siven  the  property  to  J.  ./?.,  for  \\{q\  with  remainder  to  his 
first  and  other  sons  in  tail.  And  that  as  there  was  no  gift 
over  except  in  the  event  of  a  general  failure  of  isssue  of  the 
sons  of/.  A.,  the  bequests  over  were  void  for  remoteness. 

And  where  a  testator  gave  the  profits  of  his  business,  if  rtunk  v. 
continued  by  liis  executors,  and  the  interest  of  the  monies  Fnwcr,  2 
arising  from  the  sale  of  it,  if  disposed  of,  and  also  the  in-  ^^>-^^^-  ^  M. 
terest  of  tlie  securities  on  which  the  rest  of  his  capital  should  ^^G. 
be  invested,  to  his  daughter,  for  life:  her  receipt  to  be  a  dis- 
charge.    He  then  gave  her  the  rents  and  profits  of  all  his 
real  estates,  during'her  life  ;  and,  at  her  decease,  he  devised 
and  bequeathed  to  her  heirs,  all  his  estates  real  and  per- 
sonal, as  tenants  in  common:  should  his  daughter  have  but 
one  child,  sucii  child  to  possess  the  whole;  but,  if  she  should 
die  without  issue,  then,  at  her  decease,  he  gave  certain  lega- 
cies.    He   next   directed,   that,  at  his   daughter's  decease 
without  issue,  all  his  effects  should  be  sold,  and  the  said 
legacies  paid,  and  a  sum  sufficient  to  produce  150/.  a  year, 
should  be  invested,  and  the  interest  paid  to  her  husband  for 
life.     He  then  ordered,  that  all  his  real  estates  should  be        [  399  ] 
sold,  at  the  decease  of  his  daughter,  or  at  the  decease  of  his 
brother  and  sisters,  according  as  a  particular  event  might 
turn  out ;   and  he  gave   over  to  certain  persons,  all  the 
residue  of  his  personal  estate,  including  the  proceeds  of  the 
sale  of  the  real  estate  when  sold,  and  the  rents  of  them  until 
they  were  sold.     The  daughter  died  without  having  had 
issue.     Sir  John  Leach,  M.   R.,  held,  on  the  authority  of 
Jesson  V.  IVi^ight,  2  Bligh,  1,  that  the  daughter  took  an 
estate  tail  in  the  freeholds,  on  the  ground,  that  the  testator 
intended  that  all  the  issue  of  his  daughter  should  fail  before 
the  estate  should  go  over.     And,  with  regard  to  the   per- 
sonal estate,  he  held,  that  as  it  was  the  plain  intention,  in 
the  limitations  over,  that  the  real  and  personal  estate  should 
go  together,  the  words  must  receive  the  same  construction 
as  to  both  estates;  and  consequently,  the  daughter  took  an 
absolute  interest  in  the  personal  estate. 

It  was  urged  at  the  bar,  and  it  would  seem  justly  urged,  Observations 
that  the  context  showed,  that  the  words  "  die  without  issue"  on  Dunk  v. 
denoted,  not  an  indefinite  failure  of  issue,  but  merely  a  Fenncr. 
failure  of  issue  at  her  death :  for,  the  testator  immediately 
proceeds, '"then,  at  her  decease,  I  give  to  my  brother-in- 
law  &c.  100/.  each."   (2  Russ.  &  M.  561,  559.)    And  though, 
in  the  next  sentence,  the  testator  directed  that  the  legacies 
should  be  paid  at  "his  daughter's  decease  without  issue," 
thereby  going  back  to  the  generality  of  the  first  words,  "die 
without  issue ;"  yet,  in  the  same  sentence,  and  in  the  same 
event,  he  directs  an  aunuiiy  to  be  paid  to  her  husband,  for 


[  399  ]        II.  4.  ii.]  AN  ORIGINAL  VIEW        [§719a— 721. 

his  life,  which  clearly  shows  that  he  referred  to  a  failure  of 
issue  at  her  decease. 

IV.  Liniiia-  IV.  As  a  general  rule,  "  a  limitation  over  on  a  719a 
over  on  failure  of  heirs,  is  void  for  remoteness. («)     Two 

[  400  ]  exceptions,  however,  occur  to  this:  first,  •''where  the  limi- 
failLirc  of  tation  over  is  on  failure  of  heirs  of  a  prior  taker;  and  the 
heirs.  limitation  over  is  made  to  an  individual  who  is  a  relation 

of,  and  capable  of  being  collateral  heir  to,  the  person  whose 
failure  of  heirs  is  referred  to  :{x)  secondly,  >'  where  the  limi- 
tation over  is  on  failure  of  heirs  of  a  prior  taker,  and  the 
limitation  over  is  to  the  heirs  of  the  testator,  and  they  must 
also  be  heirs  of  the  prior  taker.(y)  In  each  of  these  cases, 
it  is  evident,  that  by  heirs,  the  testator  meant  heirs  of  the 
See  §  706-7.  body;  and  that  the  limitation  over  is  a  remainder  after  an 

estate  tail. 
Griffiths  V.        A  testator  gave  the  residue  of  his  real  and  personal  estate 
Grieve,  1       to  his  nephew,  ^.,  for  life  ;  remainder  to  his  children  ;  but, 
Jac.  &  if  he  should  die  without  children  living  at  his  death,  to  his 

Walk.  .'51.  niece,  i?.,  for  life;  remainder  to  her  children:  and,  if  she 
should  die  without  children  living  at  her  death,  then,  to  her 
heirs,  executors,  administrators,  and  assigns.  And,  by  a 
codicil,  he  gave  the  same  to  the  City  of  Aberdeen,  after  the 
decease  of  the  before  mentioned  persons  in  his  will,  ^.  and 
his  heirs  for  ever,  and  B.  and  her  heirs  for  ever.  Lord  El- 
don,  C,  held,  that  the  gift  over  of  the  personal  estate  to  the 
City  of  Aberdeen  was  void  for  remoteness,  inasmuch  as  the 
word  heirs  did  not  mean  children  only;  and  even  if  it  was 
not  used  in  its  strict  sense,  it  certainly  was  co-extensive  with 
the  word  issue,  and  the  testator  did  not  contemplate  giving 
over  the  property  to  the  City,  till  a  failure  of  all  the  descend- 
ants of  ^.  and  B. 

V.  Trusts  of  V.  ^  The  trusts  of  a  term  limited  previous  to  an  720 
a  term  limit-  estate  tail,  for  raising  portions  on  the  failure  of 

ed  previous  issue  inheritable  under  the  entail,  are  too  remote:  because, 
to  an  estate  the  term  being  limited  antecedently  to  the  estate  tail  could 
tail.  not  be  defeated  by  a  recovery  ;  so  that  even  after  a  recovery 

had  been  suffered, there  would  remain  trusts  to  be  performed 
[  401   ]        on  an  event  which  might  not  happen  till  a  very  remote 

period. (z) 

VI.  Interests  VI.  Where  the  property  is  to  vest  only  in  a  721 
to  vest  on       person  who  shall  sustain  a  certain  character,  (as, 

(u)  Tilbury  v.  Barhvt,  3  Atk.  G17  ;  Right  or  Wright  v.  Hammond,  1  Stra. 
427;  and  .^It. -General  v.  Gill,  2  P.  \V.  369 ;  as  stated,  Fearne,  446,456, 
467 — 8.     Crooke  v.  De  Vandes,  9  Ves.  197,  as  stated,  Fearne,  475,  note  (s). 

(x)  Webb  V.  Hearing,  3  Lev.  470  ;  and  Tijte  v.  Willis,  Gas.  temp.  Talbot, 
1;  as  stated,  Fearne,  467. 

(y)  Nottingham  v.  Jennings,  1  P.  W.  23,  as  stated,  Fearne,  467. 

(z)  Case  V.  Drosicr,  2  Keen,  764. 


III.  4.  ii.]     OF  EXECUTORY  INTERESTS.  [§721.        [    101  ] 

for  instance,  in  a  person  who  sliall  bear  a  given  title,  or  "  be  in  the  sustain- 
holy  ordcrs,(rt)  or  be  a  tenant  in  tail  of  tiie  age  of  21 ;)  and  ing  a  certain 
no  person  sustaining  such  character  may  be  in  existence  character, 
within  the  period  fixed  by  the  general  rule  against  perpe- 
tuities; the  linnitation,  unless  it  is  by  way  of  executory  trust,  See  §  700. 
is  void  for  remoteness. 

Vere,  Lord  Vere,  bequeathed  certain  chattels  to  trustees,  Lord  Dcfr- 
in  trust  for  his  wife,  for  life;  and,  after  her  decease,  for  iiis  Imrsi  v.  The 
son,  for  life;  and  after  the  decease  of  the  survivor  of  them,  l^yt<e  of  Si. 
in  trust  for  such  person  as  should  from  time  to  time  be  Lord  yilban'n,  rj 
Vere;  it  being  his  will   and  intention  and  sole   motive  for  ^'^^-232; 
making  that  disposition,  that  the  same  should,  after  the  de-  ^;  y-  ""'"• 
cease  of  his  wife,  from  time  to   time  go  and   be  held  and  ^oUcmucite 
enjoyed  with  the  title  of  the  family,  as  far  as  the  rules  of  J^'^-^i^^^!',"'^^' 
law  and  equity  would  permit.     The  testator  left  liis  wife  J,j^  '^^^ 
and  son  surviving  him,  and  also  two  sons  of  his  son.    After 
the  death  of  his  wife  and  son,  the  eldest  grandson  succeeded 
to  the  title  and  the  chattels,  and  became  third  Lord  Vere, 
and  died,  leaving  an  infant  son,  who  then  succeeded  to  the 
title  as  fourth  Lord  Vere,  and  died  an  infant  and  unmarried, 
leaving  the  second  grandson  of  the  testator  surviving  him. 
It  was  held  by  the  Vice-Chancellor,  and  by  Lord  Lyndhurst, 
C,  on  appeal,  that  the  administratrix  of  the  fourth  Lord 
Vere  was  absolutely  entitled  to  the  chattels.     But  it  was 
decided  by  the  House  of  Lords,  that  the  chattels  vested 
absolutely  in  the  third  Lord  Vere,  the  eldest  grandson  of 
the  testator.     Lord   Cottenham,  who  had  succeeded  Lord 
Lyndhurst,   proposed   that   decision    on   the    ground,   that 
though  the  individuals  who  afterwards  happened  to  be  the 
second  and  third  Lords  Vere  were  in  existence  at  the  testa- 
tor's death,  as  individuals;  yet,  that   the  Lords  Vere,  as 
peers,  were  not  in  existence  at  that  time;  and,  in  conse- 
quence  of  attainder  and  abeyance,  no   Lord  Vere  might        [  ^102  ] 
have  happened  to  come   into   existence  for  an   indefinite 
number  of  years;  and  therefore,  the  executory  bequest  over 
to  such  person  as  should  be  Lord  Vere,  was  void  for  remote- 
ness, as  regarded  the  fourth  and  succeeding  Lords  Vere,  if 
not  as  regarded  even  the  third  Lord  Vere. 

And  where  a  testator  devised  his  reversion  in  fee  in  liis  Ibhrtson  v. 
mansion  to  his  brother,  for  life;  remainder  to  his  first  and  Ihbctson,\0 
other  sons  in  tail  male;  with  divers  remainders  over.     And  tSim.  495. 
he  bequeathed  his  plate,  pictures,  &c.,  in  and  about  his 
mansion,  to  trustees,  in  trust  to  permit  the  same  to  be  used 
and  enjoyed  by  the  person  and  persons  who  for  the  time 
being  should  be  in  possession  of  his  mansion,  under,  the 


(a)  Prorlor  v.  Bp.  of  Bath  and  Wells,  2  II.  Bine.  358,  as  stated,  Fearnc, 
510,  note  (A). 

Vol.  ll.—  U 


[  402  ]        III.  1.  ii.J  AN  ORIGINAL  VIEW  [§722. 

settlement  on  his  marriage,  or  the  hmitations  contained  in 
his  will,  mitil  a  tenant  in  tail  of  the  age  of  21  years  shonld 
he  in  possession  of  his  mansion;  and  then,  the  plate,  pictnres, 
&c.,  were  to  go  and  belong  to  such  tenant  in  tail.  A  tenant 
in  tail,  of  the  age  of  21  years,  namely,  the  brother's  eldest 
son,  became  possessed  of  the  mansion  within  21  years  from 
the  death  of  the  testator.  Yet,  Sir  L.  Shadwell,  V.  C,  held, 
that  the  trust  declared  of  the  plate,  pictures,  &c.,  was  void 
for  remoteness,  so  far  as  it  was  to  take  effect  after  the  death 
of  the  brother;  since  the  suspension  of  the  vesting  of  the 
chattels  might  endure  for  ages;  and  the  validity  of  the  gift 
must  be  determined  by  considering  how  it  stood  at  the  death 
of  the  testator;  and  unless  it  was  then  such,  that  if  it  ever 
took  effect  at  all,  it  must  of  necessity  have  vested  the  abso- 
lute interest  in  some  one  witliin  the  period  allowed  by  law, 
it  was  bad  then,  and  must  ever  be  so.  And  this  decision 
was  affirmed  by  the  Lord  Chancellor. 
BanTies  v.  But  where  a  nobleman  conveyed  real  estates  to  trustees, 

Le  Despcn-  in  trust,  after  the  death  of  himself  and  his  eldest  son,  to 
cer,  10  Sim.  settle  such  estates,  so  that  the  same  should,  so  far  as  the  law 
576.  would  permit,  be  strictly  settled  so  as  to  go  along  with  the 

dignity  of  Le  Despencer,  so  long  as  the  person  possessed  of 
the  same  dignity  shonld  be  a  lineal  descendant  of  the  settlor  ; 
and  that  during  every  suspension  or  abeyance  of  the  same 
dignity,  within  the  limits  prescribed  by  law  for  strict  settle- 
ments, the  rents  and  profits  of  the  same  premises  should  or 
[  403  J  might  be  equally  divided  among  the  co-heirs  per  stirpes  of 
the  person  or  persons  by  reason  of  whose  deatli  or  deatlis 
without  issue  male  such  suspension  or  abeyance  should  be 
for  the  time  being  occasioned.  This  being  an  executory 
trust,  Sir  L.  Shadwell,  V.  C,  held,  that  it  was  not  void 
for  remoteness ;  and  the  Master  was  directed  to  approve 
of  a  proper  settlement  according  to  the  language  of  the 
trust. 
VII.  Where        VII.  Where  real  or  personal  estate  is  devised  or  722 

the  vcstin;^  bequeathed  to  a  class  of  persons,  and  the  vesting  is 
of  a  devise  suspended  until  a  certain  age,  and  some  of  the  class  may 
or  bequest  to  possibly  not  come  into  existence  till  so  late  a  period,  that  the 
a  class  is  gift  to  them  may  be  too  remote  ;  in  such  case,  the  gift  to  the 
suspended  whole  class  will  be  void  for  remoteness:  because,  it  was  in- 
till  a  certain  tended  that  the  whole  class  should  take,  as  a  class,  and  not 
age,  and  ^j^^^  some  of  them  should  take,  in  exclusion  of  others.  (See 
someol  tnom  c  r^r.^  \  ^ 

in'^ssetllif  ^  testator  gave  real  and  personal  estate  to  trustees,  to 

remote  a    '  ^PP^y  ^^'^  ^®"^^  ^"^  interest,  or  such  parts  as  they  should 

period  think  proper,  towards  the  maintenance,  education,  or  ad- 

,     ,  '  vancement  of  his  grandson,  JV.  li.  R.,  until  25  ;  and,  after 

Robinson  2  ^^^^  attaining  that  age,  to  pay  to  or  permit  him  to  receive 


III.  4.  ii.J     OF  EXECUTORY  INTERESTS.  [§722.        [  -103  ] 

the  same  during  her  hfc ;  and,  after  his  death,  to  pay  tlie  Aferiv.  .303. 
same  or  such  part  &c.  for  the  mainfonance  &c.  of  ail  iiis  'S(;c  alsn 
children,  until,  huinti;  sons,  they  should  attain  2.5,  or,  heing  Vau-dnj  v. 
daughters,  they  should  attain  such  age  or  marry;  and  then,  ('(^ddcs.  I 
to  transfer  and  assign  to  sucii  children  wlio  should  attain  J^"^^"^-  »^  •^'• 
such  age  or  marry  as  aforesaid.     And  he  directed,  that  in '^^•^' ^'^''^'^ 
case    fV.  li.  R.  should  die  without  leaving  issue  living  at  X.   ?;' 
his  decease,  or,  leaving  such,  they  all  should  die  before  at-  j   j\  o*q- 
taining  25,  or,  being  married  as  aforesaid,  then,  the  trustees  r.Tr .'.'  'i'""* 
should    apply   the    real    and    personal   estate   unto    all  the ',7'  '  ' 
brothers   and  sisters  of  JV.  R.  R.,  share  and  share  alike,   r.. , ,  >  o- 
upon  atlanung  25  or  marriage,  as  aforesaid.     Ihe  testator  ^grj.  staled 
then  gave  the  residue  upon  trust  to  pay  one  moiety  of  the  a  352 
rents  and  interest  to  his  daughter  R.,  for  life  ;  and,  after  her  /j,^//  y_ 
death,  to  her  husband,  for  life;  and,  after  the  death  of  the  Pritchard, 
survivors,  for  the  maintenance   &c.  of  the  children  of  R.,  \  Russ.  213, 
(except    //'.  R.  R.)  m  the  same  manner  as  in  the  former  stated  §  3G0, 
gift:  and,  as  to  the  other  moiety,  upon  like  trusts  for  his 
daughter  il/.,  her  husband  and  children.     And  the  testator        [  40  1  ] 
directed,  that  in  case  of  the  death  of  any  of  his  said  grand- 
children before  25  or  marriage,  the  shares  of  them  so  dying 
should  go  to  the  survivors  ;  and,  in  case  of  the  death  of 
either  of  his  said  daughters  without  leaving  issue  by  her 
said  husband  living  at  her  decease,  her  share  should  go  to 
the  issue  of  his  surviving  daughter,      JV.  R.  R.  died  unmar- 
ried.    At  the  date  of  the  will,  he  had  a  brother  and  three 
sisters  living.     Two  other  brothers  were  born  after  the  tes- 
tator's death,  and  before  the  death  of  IF.  R,  R. ;  and  after- 
wards, another  sister.     Sir  W.  Grant,  M.  R.,  held,  that  the 
particular  bequests  and  the  bequests  of  the  moieties  of  the 
residue  to  the  children  of  R.  and  M.  were  void  for  remote- 
ness ;  that  so  far  as  the  particular  bequests  were  ill  disposed 
of,  they  fell  into  the  residue;  and  that  as  ]\I.  had  died  leav- 
ing issue,  her  moiety  belonged  to  the  next  of  kin  ;  and  that 
the  moiety  of  R.  rested  in  contingency  during  tlie  life  of  R. ; 
and  if  she  should  die  without  leaving  issue,  it  would  go  over 
to   the   children   of  M.,   the    word   "surviving"    meaning 
"other;"  but  if  she  should  die  leaving  issue,  it  would  be- 
long to  the  next  of  kin.    His  Honour  observed,  that  the  vest- 
ing was  in  every  instance  suspended  till  25,  there  being  no 
gilt  antecedent  to  the  direction  to  pay  and  transfer  at  that 
age  (2  JMeriv.  385;)  and  the  circumstances,  that  the  testator 
unnecessarily  provided  for  survivorship  ;  that  he  had  spoken 
of  shares  of  grandcliildren  dying  under  25;  and  that,  in  the 
last  proviso,  he  had  given  over  the  moieties  of  the  residue 
only  in  the  event  of  cither  of  liis  daughters  dying  without 
leaving  issue — did  not  all'ect  the  question    of  vesting;  as 
none  of  these  clauses  made  any  new  git^t  to  the  grandchil- 
dren, or  altered  the  lerins  or  conditions  o['  that  which  had 


[   10-1  ]       111.  1.  ii.]  AN  ORIGINAL  VIEW  [§722. 

been  already  made.  {lb.  3SS.)  That  wherever  a  testator 
gives  to  a  parent  for  Hfo,  with  remainder  to  his  children,  he 
means  to  include  all  the  children  such  parent  may  at  any 
time  have.  {lb.  382.)  That  assuming,  therefore,  that  chil- 
dren born  after  the  death  of  the  testator  were  to  be  let  in, 
and  that  the  vesting  was  not  to  take  place  till  25,  the  limita- 
tion to  the  brothers  and  sisters  of  fV.  R.  Ji.  were  wholly 
void  for  remoteness,  unless  the  Court  could  distinguish  be- 
[  405  ]  tween  children  born  before,  and  those  born  after  the  testa- 
tor's death,  {lb.  3SS.)  That  the  alteration  which  this  would 
involve  would  only  give  the  bequests  a  partial  effect,  and 
that  too  by  making  a  distinction,  which  the  testator  never 
intended  to  make,  between  those  who  were  the  equal  objects 
of  his  bounty.  {lb.  3S9.)  That  the  bequests  were  not 
made  to  individuals,  but  to  classes ;  and  what  he  had  to 
determine  was,  whether  the  class  could  take.  {lb.  390.) 
That  in  Jee  v.  Axidlejj,  1  Cox,  324,  there  were  no  afterborn 
children,  and  yet  the  mere  possibility  that  there  might  have 
been,  was  sufficient  to  exclude  those  who  were  capable  of 
taking.  (76.390,391.) 
Porter  v.  Again,  where  a  testator  gave  annuities  to  his  widow  and 

Fox,  G  Sim.  son,  and  directed  that  the  surplus  income  of  his  real  and  per- 
4S5.  sonal  estate  should  be  invested  in  stock,  and  the  dividends 

accumulated,  and  to  be  and  remain  assets  for  improvement 
for  the  benefit  of  such  surviving  child  or  children  as  after- 
mentioned.  And  he  directed  his  trustees,  after  the  death  of 
liis  widow  and  son,  to  sell  his  real  estate,  and  invest  the 
produce  in  stock  as  aforesaid,  to  be  and  remain  assets  for 
improvement  for  the  benefit  of  his  grandchildren  and  his 
nephew  T.  0.,  and  to  be  distributed  in  manner  and  form 
following,  that  is  to  say,  as  they  should  become  of  the  age 
of  25  years  respectively.  Two  grandchildren  were  bOrn  in 
the  testator's  lifetime,  and  another  after  his  decease.  His 
nephew  T.  O.  was  19  years  of  age  at  the  date  of  the  will. 
It  was  argued,  that  there  was,  first,  a  gift  of  the  property 
for  the  benefit  of  the  grandchildren  and  7\  O.;  and  then  the 
time  for  distribution  followed  in  a  separate  sentence.  That, 
at  all  events,  7!  O.  was  entitled  to  a  share  in  proportion  to 
the  number  of  the  grandchildren ;  for,  it  did  not  follow,  be- 
cause he  was  named  with  persons  whose  legacies  were  void 
for  remoteness,  that  he  was  not  to  take.  But  Sir  L.  Shad- 
well,  V.  C,  said,  that  the  distribution  was  part  of  the  gift. 
That  the  testator  used  the  word  children  as  comprehending 
the  children  of  his  son,  and  also  the  child  of  his  nephew. 
That  he  meant  that  the  right  of  each  child  should  depend 
on  there  being  a  class  formed  [as  fully  appeared  from  the 
subsequent  words].  That  the  first  members  of  that  class 
should  take  a  share,  the  amount  of  which  should  be  deter- 
mined by  the  number  of  individuals  then  constituting  the 


III.  1.  ii.]     OK  I<:XECUT()RY  INTERESTS.  [§722.        [  40G  ] 

class.  And  that  if  the  wliolc  intention  could  not  prevail, 
effect  could  not  be  given  to  any  part  of  it.  His  Honour  added, 
that  there  were  several  passages  in  the  judgment  in  Leach 
V.  Robinson,  which  exactly  applied  in  spirit  to  this  will. 

So  where  a  testator  gave   30,000/.  to  the  children  of  his  Dmld  v. 
daughter  who  should  lie  living  at  llic  time  the  eldest  should  l^'<i/«re,  9 
be  24,  and  the  issue  of  such  of  them  as  might  be  then  dead,  ►'^""-  615. 
to  be  paid  to  them  when  and  as  they  should  attain  21,  but 
without  interest  in  the  meantime.     Sir  L.  Shadwell,  V.  C, 
held,  that  the  bequest  was  void  for  remoteness. 

So  where  a  testator,  after  devising  lands  to  his  son  for  Newman  v. 
life,  directed  his  trustees  to  stand  possessed  of  the  proceeds  Newman,  10 
of  the  sale  thereof,  in  trust   for  all  his  grandchildren,  the  Sim.  51. 
children  of  his  son  and  three  daughters,  who  should  attain 
24.     The  son  and  daughters  had  children  living  at  the  tes- 
tator's death,  and  no  other  children  were  born  afterwards. 
Sir  L.  Shadwell,  V.  C,  held,  that  the  trust  was  void  for 
remoteness. 

And  where  a  testator  devised  his  real  and  personal  estate,  Cromek  v. 
upon  trust  to  sell,  and  invest  so  much  of  the  produce  as  Lumb,  3  ^ 
should  be  snliicicnt  to  raise  three  annuities  of  100/.,  and  to  }ou.  &  C. 
apply  one  of  such  annuities  towards  the  maintenance  of  his  ''^^j. 
grandchildren,  the  children  of  his  daughter  //.  deceased, 
until  the  youngest  should  attain  23;  and  then  he  directed 
that  the  principal  sum  invested  for  the  purpose  of  raising  the 
annuity  should  be  paid  and  divided  unto  and  equally  among 
his  last  mentioned  grandchildren.     And,  upon  further  trust, 
to  pay  to  each  of  his  daughters  C.  and  JF.,  for  their  lives, 
the  like  annuity  of  100/.     And,  as  to  each  of  such  principal 
sums  as  should  have  been  invested  for  the  purpose  of  rais- 
ing the  last  mentioned  annuities,  he  directed  his  trustees  to 
divide  them,  from  and  immediately  after  the  death  of  C.  and 
JF.  equally  among  all  the  children  of  C.  and  IF.  then  living 
or  thereafter  to  be  born.     And  he  directed  that  the  shares 
(subject  and  without   prejudice  to  the  life  interest  of  his 
daughters)  of  all  his  grandchildren,  should  be  paid  to  such 
grandchildren  at  23,  in  the  case  of  sons,  and  at  23  or  mar- 
riage, in  the  case  of  daughters.     Provided  that  the  share  of 
each  should  be  a  vested  and  transferable  interest  in  each 
grandchild,  being  a  son,  on  his  attaining  23  or  leaving  issue 
at  his  decease,  and  in  each  grandchild,  being  a  daughter,  on        [  407  ] 
her  attaining  that  age  or  marrying.     Then  followed  a  clause 
of  survivorship,  and  a  clause  of  maintenance.     There  wore 
live  children,  and  three  of  them  attained  23;  of  wliom  ./.  //. 
died,  after  surviving  M.  //.,  who  died  under  23,  and  prede- 
ceasing D.  //.,  who  died  under  that  age.     It  was  held,  that 
J.  H.  took  an  original  one  fifth  share  of  the  annuity  fund 
provided  for  the  children  of  H.,  and  one  third  of  M.  //.'s 
share,  but  no  part  of  Z}.'s  share  ;  the  words  "survivors  and 


[    107  ]         III.  4.  ii.] 


AN  ORIGINAL  VIEW  [§723,  724. 


Distinction 
suggested, 
that  some 
sliould  take 
under  the 
will,  where 
none  could 
take  in  case 
ot"  an  intes- 
tacy; but 
that  none 
shoidd  take 
under  the 
will,  where 
they  could 
all  take  in 
case  of  an 
intestacy. 


[  40S  ] 


Objection 
answered. 


survivor"  being  used  in  their  uatiu-al  sense.  It  was  also 
held,  that  the  limitations  of  the  annuity  fund  from  which  C. 
and  IV.  derived  their  life  annuities,  were  void  for  remote- 
ness, even  as  to  the  children  of  C  and  W.  living  at  the  date 
of  the  will. 

At  first  sight,  it  would  seem,  that,  as  a  general  723 

rule,  the  Court  should  give  effect  to  the  disposition 
of  the  will,  in  favour  of  as  many  of  the  class  as  could  law- 
fully take ;  and  that,  though  the  testator  did  not  intend  to 
draw  any  distinction  between  persons  who  were  equally 
the  objects  of  his  bounty,  yet,  if  it  became  a  question  whe- 
ther all  should  take  under  the  will,  or  none,  he  would  pre- 
fer, that,  at  all  events,  some  should  be  admitted,  if  all  could 
not.  And  this,  in  fact,  would  surely  be  the  intention  of  the 
testator,  if  the  objects  of  his  bounty  would  be  deprived  of 
his  property  altogether,  unless  they  could  take  under  the 
will ;  as,  where  they  are  all  strangers,  or  such  relatives  as 
are  not  the  persons  to  whom  the  statute  of  distributions 
would  give  it  in  the  event  of  his  intestacy.  But,  where 
they  would  take  in  case  of  an  intestacy,  and  it  therefore 
would  not  be  a  question,  whether  all  should  take,  or  none, 
but  merely  a  question,  whether  all  should  take  under  the 
will,  or  none;  there,  as  a  general  rule,  it  would  seem  that 
the  testator  would  prefer,  that  none  should  take  by  the 
will,  but  that  the  succession  should  be  left  to  the  disposition 
made  by  the  statute  of  distributions.  Suppose,  for  instance, 
the  testator  gives  the  ultimate  interest,  subject  to  the  life 
interest  of  a  prior  legatee,  to  a  class  of  persons  who  are  his 
next  of  kin :  his  intention,  if  his  personal  estate  were  not 
exhausted  by  his  debts,  would  be  effectuated,  if  none  were 
allowed  to  take  under  the  will,  though  the  bequest  would 
fail ;  whereas,  if  some  only  were  allowed  to  take  under  the 
will,  his  intention  that  all  should  take,  would  be  defeated. 
Would  it  not,  therefore,  be  a  just  distinction  to  allow  those 
individuals  of  the  class  to  take,  who  lawfully  could  take, 
where  Xhcy  would  otherwise  be  entirely  deprived  of  the 
property  intended  for  them  ;  but  to  admit  none  of  the  class 
under  the  will,  where  they  would  all  take  under  the  statute? 
This  suggestion  is  thrown  out  with  great  diffidence,  as  appa- 
rently foimded  in  common  sense,  and  in  furtherance  of  the 
real  intention,  which  is  the  governing  principle  in  the  con- 
struction of  wills. 

It  may  be  objected,  that  the  validity  or  inva-  724 

lidity  of  the  dispositions  of  a  will  ought  not  to 
depend  on  the  character  of  the  objects,  when  they  arc  not, 
in  themselves,  incapable  of  the  testator's  bounty.  I5ut,  why 
should  not  a  testamentary  disposition  be  dependent  on  the 
character  of  the  objects,  just  as  much  as  upon  the  nature  of 
the  subjects,  as  in  cases  where  the  words  "leaving  issue," 


III.  1.  ii.]    OF  EXECUTORY  INTERESTS.  [§725.        [    lOS  ] 

arc  interpreted  in  regard  to  personal  estate,  in  a  different 
manner  from  tliat  in  which  they  are  interpreted  in  regard  to  Sec  §  538-9. 
real  estate.  No  evil  of  nncertainty  arises,  it  would  seem,  in 
either  case;  because,  the  character  of  the  objects  and  the 
nature  of  the  subject  is  known  at  once,  and  remains  un- 
changeable. And  therefore,  it  is  not  like  determining  the 
validity  or  invalidity  of  a  limitation,  according  to  the  events 
that  happen  alter  the  testator's  dealli ;  for,  in  that  case,  the 
limitation  might  be  regarded  as  invalid  one  hour  and  valid 
the  next,  which  would  be  productive  of  the  greatest  mis- 
chief. 

Again,  why  should  not  the  Court  admit  some  of  a  class, 
and  exclude  others  on  the  ground  of  remoteness,  when,  in 
numerous  instances,  it  has  admitted  some  of  a  class,  and  ex-  See  §  227- 

cluded  others,  on  the  ground  of  inconvenience  ?        230c. 
725  VIII.  Where  a  testator  expressly  confmes  his  VfH.  Where 

bounty  to  a  certain  description  of  persons  among  a  a  testator 
given  class,  evidently  for  the  purpose  of  avoiding  a  trans-  gives  tosome 
gression  of  the  limits  prescribed  by  the  rule  against  perpe-  only  of  a 
tuities,  and  yet  makes  the  limitation  over  depend  in  terms  class  to  keep 
upon  the  failure  of  the  whole  class,  without  restriction  ;  the        [  409  ] 
limitation  over  will  be  so  construed  as  to  be  capable  of  tak-  ^vithin  the 
ing  cllect  simply  on  failure  of  those  of  the  class  who  are  to  ™'c  against 
take  under  the  express  limitations,  especially  if  the  testator  pf^'T^tuitics, 
excludes  some  of  the  class,  irrespectively  of  the  rule  against  .       >'^'  ^'"^* 
perpetuities.     And,  for  the  purpose  of  this  construction,  the  'f^./^^'^'*  ^" 
word  "  such,"  or  "said,"  will,  if  necessary,  be  supplied.         wholc^dasr 

A  testator  beaueathed   all  the   residue  of  his  personal  t.      il -a/^  ' 
estate,  upon  trust,  for  his  grandson  B.,  the  son  of  his  son  ,..,.       . 
Jsaac,  at  25,  for  life;  and,  after  the  death  of  B.,  in  case  he  ^VJ,'^''^",?  "" 
should  have  a  son  who    should  attain  21,  then,  for  such  '{^^i^^s^ [•' 
son  of  i^,,  who  should  first  attain  21,  absolutely;  and,  in  j.^-'^ 
case  B.  should  have  no  son  who  should  attain  21,  upon 
trust  for  the  testator's  grandson,  J.,  the  son  of  Isaac,  at  25, 
for  life;  and,  after  the  death  o[  J.,  in  case  he  should  have  a 
son  who  should  attain  21,  then  for  such  son,  absolutely; 
with  the  like  limitations  successively  in  favour  of  any  other 
grandsons,  sons  of  Isaac,  born  m  the  testator's  lifetime,  and 
their  respective  sons  first  attaining  21 ;  and  in  case  no  son  of 
Isaac,  then  born,  or  to  be  born  in  the  testator's  lifetime, 
should  have  a  son  who  should  live  to  attain  21,  then,  upon 
trust  for  any  son  of  Isaac  born  after  the  testator's  decease 
who  should  first  attain  21,  absolutely;  and,  in  case  no  son 
of  any  son  of /hY/r/c  born  in  the  testator's  lifetime,  nor  any 
son  of  Isaac  born  after  the  testator's  decease,  should  live  to 
attain  the  age  of  21  years,  then,  from  and  immediately  after 
the  decease  of  all  the  sons  and  grandsons  of  Isaac,  upon 
trust  for  the  testator's  nephew  G.,  for  life ;  and,  upon  Cr.'s 
decease,  in  trust  for  such  son  of  G.  as  should  first  attain  21. 


[  409  ]       III.  4.  ii.]  AN  ORIGINAL  VIEW  [§726. 

Lord  Cottcnham,  C.,held,  that  the  words,  "after  the  decease 
of  all  the  sons  and  grandsons,"  must  be  read  as  if  Ihey  liad 
been  "after  the  decease  of  all  the  said,''  or  "all  sicch  sons 
and  grandsons ;"  and,  therefore,  that  the  limitation  over,  in 
favour  of  the  first  son  of  G.,  was  not  too  remote.  It  was 
obvious,  from  the  provisions  'preceding  the  limitations  over 
in  favour  of  G.  and  his  son,  that  the  author  of  the  will  knew 
well  to  what  extent  the  law  would  permit  tlie  vesting  of 
the  residue  to  be  postponed;  and  that  he  had  framed  those 
[  410  ]  provisionsaccordingly;  and  hence,  it  would  be  unreasonable 
to  suppose  that  he  intended  to  transgress  those  bounds  by 
the  limitations  over  to  G.  and  his  son.  (3  M.  &  C.  147.) 
Besides,  it  was  evident  that  all  the  grandsons  of  Isaac  were 
not  to  take :  for,  of  all  the  grandsons  of  Isaac  who  might 
come  in  esse,  the  testator  fixed  upon  one  only,  who,  to  be- 
come entitled,  must  have  attained  21,  and  have  been  born 
of  a  father  himself  born  in  the  testator's  lifetime.  {lb.  14S.) 
And  as  it  was  clear  that  the  whole  of  the  class  were  not  to 
take,  the  gift  over,  though  made  to  depend  upon  the  failure 
of  the  whole  class,  was  to  be  construed  to  take  place  upon 
the  failure  of  that  description  of  the  class  who  were  take; 
(lb.  151:)  for,  there  could  be  no  motive  for  postponing  it 
for  any  longer  period  than  was  necessary  to  let  in  those 
who  were  the  prior  objects  of  the  testator's  bounty.  {lb. 
138,  148.) 
IX.  Where  a      IX.  Where  the  prior  limitations  are  confined  to  726 

testator  gives  a  certain   description  of  persons   among  a  given 
to  some  only  class;  and  the  persons  falling  within  such  description  may 
of  a  class,      take,  without  transgressing  the  rule  against  perpetuities; 
without  and  there  is  a  limitation  over,  which  was  apparently  in- 

transgress-  tended  to  take  effect,  as  an  alternative  limitation,  in  the 
ing  the  rule  event  of  the  non-existence  of  the  persons  so  descril)ed, 
against  per-  though,  in  terms,  it  is  only  to  take  efl^ect  in  case  of  a  failure 
peiuitiesjbut,  ^^  ^j^^  -^vjiole  class;  it  will  be  treated  as  an  alternative  limi- 
jn  terms,  li-  j^^^^qj^^  {q  ^^]^q  effect  in  the  above-mentioned  event,  and 
rT  °^7thc  ^^^^^^^^^^  ^^  "^t  void  for  remoteness.     (See  §  128,  706.) 

,    ]     J  A  testator  bequeathed  the  residue  of  his  personal  estate 

and  vet  an-'  to  trustees,  in  trust  for  his  daughter,  for  life;  remainder  to 
parentlv^n-  ^^^^  children,  at  21;  and,  in  case  any  or  either  of  the  said 
tended  to  '  children  should  die  under  the  said  age,  and  have  one  or 
createamere  rnore  child  or  children  who  should  survive  his  said  daughter, 
alternative  and  live  to  attain  the  said  age,  such  last  mentioned  child  or 
interest.  children  should  be  entitled  to  his  or  their  parent's  share; 
Trickeu  v.  "^^ith  an  ultimate  limitation  over,  if  tlierc  should  be  no  child 
Trickey,  3  of  his  said  daughter,  or,  there  being  any  such,  no  one  of  them 
M.  &  K.  should  live  to  attain  the  age  of  21  years,  nor  leave  any  issue 
560.  who  should  attain  llicrelo.     Sir  John   Ijcach,  M.  R.,  held, 

that  as  the  first  provision  in  favour  of  the  children  of  the 
child  of  the  daughter  who  should  die  under  21,  was  confined 


III.  1.  ii.]  OF  EXECUTORY  INTERESTS.  [^^727—730.        [ill   ] 

to  such  grandchildren,  [of  the  daughter]  as  should  survive 
the  daughter;  so,  in  the  subsequent  passages,  the  testator 
was  to  be  understood  to  speak  of  such  grandchildren  only; 
and  therefore  the  linaitation  over  being  to  take  effect  upon 
failure  of  grandchildren  [of  the  daughter]  who  should 
survive  the  daughter,  and  not  live  to  attain  21,  was  not 
too  remote,  as  it  extended  only  to  a  life  in  being,  and  21 
years. 

727  X.  ''Where   a  prior  limitation  depends  on  too  X.  When  an 
remote    an    event ;    and    there    is  an    alternative  alternative 

limitation    which    depends   simply  on    the   non-happening  limitation  is 
of  that  event ;  and  it  is  possible,  at  the  date  of  the  insfru-  void  for  re- 
ment,  that   it  may  not   be  decided,  within  the  period  pre-  moteness. 
scribed  by  the  rule  against  perpetuities,  whether  or  not  such  See  §  700. 
event  will  or  will  not  happen;  in  such  case,  the  alternative  li- 
mitation is  void,  as  well  as  the  prior  limitation  ;  because,  each  Sec  §  128- 
is  in  fact  limited  on  too  remote  a  contingency. (A)      1^6. 

728  XI.  "^In  the  case  of   a  particular  or  qualified  XI.  Interests 
power  of  appointing  real  or  personal  estate,  that  under  par- 
is,  a  power  of  appointing  it  to  or  among  particular  objects  ticular  or 
only;  no  estate  or  interest  created  by  the   exercise  of  the  qualified 
power,  will  be  good,  unless  it  might  have   been  created  by  po^^ors  must 
the  deed  or  will  itself  conferring  the  power.     So  that,  limi-  "^  ^"*^"  ^^ 
tations  which  would  have  been  void  for  remoteness,  if  in-  ^^^^^     j  % 
serted  in  an  instrument  conferring  a  particular  power,  will       "  ^f", 

also  be  void  for  remoteness,  if  inserted  in  the  instrument  bv  .•     j     i  ^ 

the  uCCu  or 
which  the  power  is  exercised.     And  hence,  estates  or  inte-  „.,|,  ^^  ,  • 

'     ,  .   ^    ,        J  .      '  ir    1  ^^'"  contain- 

rests  cannot  be  appointed  under  a  particular  or  quaiitied  j^^^^  ^^^^ 

power,  to  any  persons,  as  purchasers,  who  are  the  children  po°ver. 

of  persons  not  in  being  at  the  time  of  the  execution  of  the  gpg  R  706- 

deed  or  at  the  date  of  the  will.  710. 

729  XII.   But,  in  the  case  of  a  general  power,  that  xn  But  in- 
is,  a  power  of  appointing  the  fee  to  anyone  whom  terests  under 

the  donee  of  the  power  thinks  proper;  it  is  not  necessary  rrcneral 
that  the  estates  created  by  the  exercise  of  the  power,  should        [  412  ] 
be  such  as  would   be  good  if  created   by  the  deed   or  will  powers  need 
conferring  the  power.  not  be  of 

730  The  reason  of  this  difference  is,  that  in  tlie  case  such  a  cha- 
of  a  particular  power,  the  specification  of  the  ob-  ratter. 

ject  takes  the  land  out  of  commerce  or  locks  up  the  capital,  Reason  of 
and  tends  to  a  perpetuity.     Whereas,  there  is  no  tendency  the  above 
to  a  perpetuity  in  a  general  power,  as  it  enables  the  party  to  disiinction. 
vest  the  whole  fee  in  himself,  or  in  any  other  person,  and  to 
liberate  the  estate  entirely  from  every  species  of  restriction, 
through  the  medium  of  a  seisin  previously  created  and  vested 


(6)  See  Proctor  v.  The  Bishop  of  Hath  and  Wcl/s,  2  H.  Black.  ;)")y  ;  and 
Cambridge  v.  Rous,  8  Vcs.  12 — 24;  as  stated,  bVarne,  508,  note  {k). 
Vol.  II.— 42 


[  412  ]        III.  4.  ii.]  AN  ORIGINAL  VIEW        [§731—733. 

in  other  persons,  to  the  same  unlimited  extent  as  he  could 
have  done  by  a  conveyance  of  the  land  itself,  if  the  seisin 
liad  been  vested  in  him,  instead  of  being  vested  in  others  to 
such  uses  as  he  should  appoint. (c) 
XIII. Powers       XIII.  If  a  power  is  not  to  arise  till  an  event  731 

to  arise  on     (such  as  an  indefinite  failure  of  issue)  that  proba- 
an  indefinite  (i|y  niay  not  occur  within  the  period  prescribed  by  the  rule; 
failure  ol  is-  jIj^.   power  and    the  apj)ointment  are  both  void  for  remote- 
I"®-  ness,  even  though   it  may  happen  that  the  event  occurs 

bee  ^  706.     ^^[(1,^^  (he  prescribed  period. 

Reason  for         It  would  be  inconvenient  and  unreasonable,  if  732 

the  foregoing  the  power  were  held  to  be  good,  so  far  as  to  enable 
*""'^-  the  donee  to  make  a  good  appointment  in  case  the  event 

should  occur  within  the  prescribed  period  :  for,  according  to 
See  §  79-81.  this  construction,  the  vesting  in  interest  of  the  property,  or 
See  §  369a-  the  absolute  and  indefeasible  vesting  thereof,  as  the  case 
374.  may  be,  might  remain  for  many  years  suspended  upon  an 

event  which  probably  would  not  happen  in  time  for  any 
appointment  to  be  made. 
Bristow  v.  A  settlement  was  made  on  husband  and  wife,  for  their 
Boothby,  2  lives  ;  remainder  to  the  sons,  in  tail  male  :  remainder  to  the 
Sim.  &  Stu.  daughters,  in  tail;  remainder  to  the  survivor  of  the  husband 
465,  jjj^j  wife,  in  fee.     And  it  was  provided,  that  in  case  there 

should  not  be  any  child  or  children  of  the  marriage,  or,  being 
such,  all  of  them  should  die  without  issue,  and  the  husband 
f  413  ]  should  survive  the  wife,  then  it  should  be  lawful  for  B.,  the 
wife,  by  deed  or  will,  to  charge  the  premises  with  5000/.,  to 
be  raised  and  paid  after  the  decease  of  the  husband  and  wife 
and  such  failure  of  issue  as  aforesaid,  to  such  person  as  the 
wife  should  direct.  There  was  only  one  child,  who  died  at 
the  age  of  eight  years  ;  and  the  wife  afterwards  died  in  the 
husband's  life-time,  having,  by  her  will,  exercised  the  power. 
Sir  John  Leach,  V.  C,  held,  that  as  the  estate  was  not  limited 
to  all  the  issue  of  the  marriage  (the  limitation  to  the  sons 
being  in  tail  male,  and  not  in  tail  general)  and  the  power 
was  to  arise  on  an  indefinite  failure  of  issue,  it  was  too  re- 
mote. 
XIV. Powers      XIV.    But,  where  a  power  authorises  an  ap-  733 

of  appoint-     pointment  among  a  class  of  persons,  the  power  is 
rnent  among  good,  provided  some  of  the  class  will  probably  come  into 
a  class  of      existence  within  the  period  prescribed  by  the  rule,  though 
persons,         others  may  not ;  for,  in  such  case,  it  is  suflicient  if  the  actual 
some  of         appointment  made  in  exercise  of  the  power,  is  confined  to 
whom  will     objects  who  have  come  or  may  come  into  existence  withm 
probably        g^j^j^  prescribed  period. 
come  ifi  esse 
wiiliin  the  period  prescribed  by  the  general  rule. 

(c)  See  Butler's  note,  Co.  Litt.  271  b.  (1)  VII.  2,  as  regards  real  estate. 


III.  4.  ii.]    OF  EXECUTORY  INTERESTS.  [§73  J,  735.        [    113  ] 

734  In  this  instance,  as  there  will  piohably  be  occa-  Reason  for 

sioii  for  that  suspension  of  the  vestini^  in  interest,  i lie  foregoing 
or  of  the  absolute  and  indefeasible  vesting,  winch  is  caused  rule, 
by  the  creation  of  the  power;  in  other  words,  as  there  will 
probably  be  objects  to  whom  a  valid  appointment  may  be 
made,  without  lransi,'ressing  the  rule  against  perpeluities, 
there   is  no  more   inconvenience  and   unreasonableness  in 
allowing  such  suspension,  than  there  is  in  the  ordinary  cases  S-'o  ^  117- 
of  contingent  springing  or  shilling  interests,  limited  without  l~7b,  148- 
the  medium  ot  a  power,  *     • 

A  power  was  given,  by  a  marriage  settlement,  to  the  hus-  Rouihdsic 
band  and   wife,  or  the  survivor,  to  appoint  personal  estate  v.  Dorril, 
among  all  the  children  and  grandchildren  or  issue  of  tfie  J  \<^«-  J""- 
marriage.     A'.  />.,  the  wife,  survived  ;  and,  having  (besides  ^•^^• 
other  children)  a  daughter  B.,  who  had  three  children  living 
at  her,  E.  7J.'s,  decease,  she  appointed  part  of  the  iiioney, 
by  will,  to  E.  for  lite,  for  her  se|)arate  use;  and,  after  JC.'s 
decease,  to  all  her  children  (and  not  to  the  three  only  who 
were  living  at  E.  Jl's  death).     Sir  R.  P.  Arden,  M.  R., 
held,  that  the  power  was  good;  (2  Ves.  Jun.  362;)  but  that        [  4H  ] 
the  appointment  which  was  actually  made,  was  too  remote; 
and  that,  on  the  authority  of  Gee  v.  ^rlucUey,  it  was  there- 
lore  void,  as  to  all  the  children  of  E.;  and  that  it  could  not 
be  supported  in  favour  of  those  who  were  living  at  the  death 
o^  E.  D.;  because  E.  D.  did  not  mean  those  only,  but  all. 
{lb.  3(J2— 6.) 

E.  D.  made  a  similar  appointment  in  favour  of  a  son,  H. 
I).,  and  his  children.  7?.  D.  had  no  children  at  the  death  of 
E.  D.  It  was  argued  that  the  intention  should  be  executed 
c\j  pres.  The  Master  of  the  Rolls  said,  that  where,  indeed, 
real  estate  is  limited  to  a  person  unborn,  for  life  ;  remainder 
to  his  first  and  other  sons,  in  tail;  as  they  caimot  take  as 
purchasers,  but  may  as  heirs  of  the  body;  and  as  the  estate 
is  clearly  intended  to  go  in  a  course  of  descent;  it  shall  be 
construed  an  estate  tail  in  the  person  to  whom  it  is  given  for 
life.  lint  that  this  mode  of  executing  the  intention  c})  prea 
was  not  applicable  to  personal  estate;  for,  the  Court  could 
only  give  the  personal  estate  to  the  unborn  tenant  for  life, 
absolutely;  and  then  it  would  not  go  in  a  course  of  descent, 
but  would  go  to  his  executors  and  be  liable  to  his  debts. 

{lb.  365.) 
735  XV.    A    learned    anthor((/)    refers    to    several  XV.  Powers 

cases, (^)   in   proof  that  a  power  of  sale  is  valid,  of  sale, 
though  not  restricted  to   the    period    allowed  by   the    rule  See  §  7116. 
against  perpetuities. 

(rf)  1  Jarman  on  Wills,  250. 

\c)  Biddle  v.  Perkms,  4  Sim.  135;  Pmvis  v.  Capron,  Id.  138  n.;  Wannp;  v. 
Coventry,  1  .Myl.  &  K.  249  ;  Boycc  v.  Hunning,  2  Crump.  &  Jer.  331 ;  Holder 
V.  Preston,  2  Wils.  400. 


[  414  J        111.  4.  iii.] 


AN  ORIGINAL  VIEW         [§736—738. 


SECTION  THE  THIRD. 

Cert  ail}    Points   connected  tvith   the   Doctrine   of 


connected  tvith 
Remoteness. 


I.  \\"hcre  the 
absolute  in- 
[  415   ] 
terest  is  af- 
terwards re- 
stricted to  a 
life  interest 
with  a  limi- 
tation over 
which  is  void 
for  remote- 
ness. 
Ring  V. 
Hardicick, 
2  Beav.  362. 


736 


I.  Where  a  testator  first  makes  a  gift  in  terms 
which  would  carry  the  absolute  interest  in  chat- 
tels, and  then  proceeds  to  restrict  it  to  an  estate  for  life;  add- 
ing a  limitation  over  which  is  void  for  remoteness;  the 
entire  interest  as  conferred  by  the  original  gift,  remains  im- 
affected  by  the  subsequent  attempt  at  restriction.  (See  § 
706.) 

A  testator  bequeathed  his  residuary  personal  estate  upon 
trust,  for  his  wife,  for  life,  or  during  widowhood;  and,  after 
her  decease  or  second  marriage,  upon  trust  to  divide  the 
same  between  his  four  children,  his  two  sons, ./?.  and  B., 
his  two  daughters,  C.  and  D.;  the  shares  of  the  sons  to  be 
paid  immediately.  And  he  directed  that  the  shares  of  his 
two  daughters  C.  and  D.  should  be  invested  for  them,  for 
hfe,  and  after  their  respective  deaths,  divided  between  their 
respective  children,  and  to  become  vested  in  such  children 
at  the  age  of  25.  And  that,  in  case  either  daughter 
should  die  without  leaving  any  child  who  should  live  to 
attain  25,  then,  the  property  should  go  to  the  children  of 
the  others  who  should  attain  25.  Lord  Langdale,  M.  R., 
held  that  the  gift  to  the  children  was  contingent,  notwith- 
standing the  testator  had  used  the  word  "share,"  in  refer- 
ence to  their  interest  before  25;  and  that  consequently  it 
was  too  remote,  and  the  absolute  interest  remained  to  the 
daughters,  according  to  the  original  gift. 

II.  <■  Where  a  limitation  is  void  for  remoteness,  737 
der  after  too  a  limitation  in  remainder  after  it,  is  not  accelerated, 

but  is  also  void.(y") 

III.  Where  a  term  limited  in  remainder  in  trust 
to  raise  sums  of  money,  is  well  created  ;  but  the 
uses  for  which  the  money  is  to  be  raised,  are  void  for  re- 
moteness ;  and  the  devisees  in  remainder  after  the  term,  are 

created,  the  [^  ^^  ^^^^  ^^^^^  ^^^^  money  shall  have  been  raised,  or  the 
arrvoid  fo?  ^^^"^  determined,  the  money  will  belong  to  the  heir  at  law, 
as  a  resulting  trust. 

A  testator,  after  limiting  certain  estates  for  life  and  in  tail, 
devised  the  lands  to  trustees  for  a   term,  in  trust  to  raise 
.^.  .^w.       sums  of  money  for  uses  which  were  void  on  account  of  their 
harnf 5  Dow.  remoteness,  and  then  proceeded  to  limit  other  estates  "  after 
194.'  *  the  said  sums  should  be  raised  for  the  said  uses,  or  determi- 

nation of  the  said  term."     The  Court  of  Exchequer  made  a 


See  §  100-3 
II.  Remain- 


remoie  an 
interest. 
III.  Money 
raised  by  a 
term  well 


remoteness, 
[  416  ] 
Tregonwell 
V.  Syden 


738 


(/)  Robinson  v.  Hardcaslle,  2  Bro.  C.  C.  22  ;  and  S.  C.  2  Durn.  &  East, 
241,  380,  781;  as  stated,  1  Jarrnan  on  Wills,  243. 


III.  5.  i.J      OF  EXECUTORY  INTERESTS.        [§738a.        [    UG  J 

decree,  whereby  they  virtually  put  the  term  of  GO  years 
entirely  out  of  the  will,  and  gave  up  the  lands  to  the  next 
tenant  for  life,  as  if  he  liad  been  the  immediate  devisee. 
But  this  decree  was  reversed  by  the  House  of  Lords,  who 
lield  that  as  the  term  was  well  created,  and  the  devisees  in 
remainder  after  the  term,  were,  by  express  words,  only 
to  take  after  the  money  should  be  raised,  or  the  term  de- 
termined; the  money  belonged  to  the  heir  at  law,  as  a 
resulting  trust. 


CHAPTER  THE  FIFTH.  [  417  J 

OF  THE  RESTRAINTS  IMPOSED  ON  THE  ACCUMULATION  OF 
THE  INCOME  OF  REAL  AND  PERSONAL  ESTATE  J  AND  OF 
THE  DESTINATION  OF  INCOME  RELEASED  FROM  ACCU- 
MULATION OR  ACCRUING  BEFORE  THE  VESTING  OF  AN 
EXECUTORY    DEVISE    OR    BEQUEST. 


SECTION  THE  FIRST. 

The  t/Jccumulation  allowed  before  the  Statute. 

738a  *  Before  the  passing  of  the  statute  39  &  40  Geo. 
III.  c.  98,  a  person  might  suspend  the  enjoyment 
of  real  and  personal  estate,  and  direct  that  the  whole  of  the 
rents,  profits,  and  produce  thereof,  should  be  accumulated, 
for  as  long  a  period  as  that  during  which  it  was  allowable 
to  suspend  the  vesting  of  the  ownership  or  property  of  and 
in  such  real  and  personal  estate. (a) 

But  if  the  accumulation  exceeded  that  period,  it  was  void 
in  toto,  and  not  merely  as  to  the  excess. 

Thus  where  a  term  was  limited,  in  trust,  during  the  re-  Lord  South- 
spective  minorities  of  the  respective  tenants  for  life,  or  in  ampton  v. 
tail,  in  possession,  or  entitled  to  the  rents  of  real  estate,  to  Marquis  of 
receive  and  lay  out  the  rents  in  stock,  to  accumulate  for  Htrtford^  2 
such  person  or  persons  as  should,  upon  the  expiration  of  V.  «S:  B.  54. 
such  minorities  or  death  of  the  minor  or  minors,  be  tenant 
or  tenants  in  possession  or  entitled  to  the  rents,  and  of  the 
age  of  21.     Sir  W.  Grant,  M.  R.,  held  that  the  trust  was 
altogether  void,  except  so  far  as  it  was  a  trust  for  the  pay- 

(a)  SeeFearne,  533,  note  (x);  and  r/ie/«5S0ttv.  Woodford,  11  Vcs.  112,  116, 
as  stated,  Fcarnc,  436,  note  (/). 


[  417  J        III.  5.  i.]  AN  ORIGINAL  VIEW  [§73Sa. 

ment  of  debts  ;  because  it  might  extend  beyond  the  period 
allowed  for  executory  devises  or  trusts  for  accumulation,  in 
consequence  of  a  succession  of  minorities.     It  was  argued 
at  the  bar,  that  a  series  of  minorities  might  prevent  aliena- 
[  418  ]        tion  in  the  case  of  any  limitations  in  tail.  But,  to  this  it  was 
justly  replied,  that  the  incapacity  of  alienation  in  the  latter 
case,  is  not  produced  by  the  parties  themselves. 
Marshall  v.       And  where  a  testator  devised  and  bequeathed  his  real 
HoUoicay,     and  personal  estate,  upon  trust,  to  invest  the  rents  and  profits 
2  Swanston,  and  annual  proceeds  as  and  when  and  so  often  and  during 
451.  all  such  times  as  any  person  or  persons  beneficially  inter- 

ested in  or  entitled  to  any  real  and  personal  estates  under 
the  trusts  afterwards  declared,  should  be  under  21;  adding 
all  such  investment  to  his  personal  estate,  in  order  to  accu- 
mulate the  same  ;  and,  subject  to  sucii  trusts  and  certain 
others,  upon  trust  for  the  eldest  son,  then  living,  of  his 
daughter,  for  life  ;  remainder  to  his  first  and  other  sons  in 
tail,  with  divers  remainders  over.  Provided  always,  that 
such  person  or  persons  as  should  be  entitled  to  an  estate  tail 
in  possession  in  his  said  real  estate,  should  not  be  absolutely 
entitled  to  his  leasehold  and  personal  estate  until  he,  she,  or 
they  respectively  should  attain  21;  and,  in  the  meantime, 
the  said  leasehold  and  personal  estates  should  remain  subject 
to  the  trusts  before  declared  thereof.  The  testator  then  di- 
rected, that  every  person  who  should  become  entitled  to  the 
possession  or  the  receipt  of  the  rents  and  profits  of  his  said 
real  and  personal  estates,  should  within  a  year  after  attain- 
ing 21  and  so  becoming  entitled,  assume  the  surname  and 
arms  ol'  Holloway.  It  was  argued  for  the  heir-at-law  and 
next  of  kin,  that  the  proviso  gave  a  direction  and  operation 
to  every  clause,  and  was  to  be  considered  as  a  part  of  the 
gift ;  and  that  no  person  was  to  derive  any  benefit  before 
21;  and  hence,  that  no  property  was  intended  to  vest  either 
in  enjoyment  or  right,  before  21.  That  if  the  testator  had 
intended  an  immediate  gift,  he  would  have  directed  an  im- 
mediate assumption  of  his  name  and  arms.  (2  Swans.  441.) 
That  the  words  "subject  to  the  trusts,"  meant  "after  per- 
formance of  the  trust;"  and  that  all  the  limitations  of  the 
real  estate  to  unborn  persons  after  the  first  estate  for  life, 
being  designed  not  to  take  effect  till  after  the  performance 
of  a  trust  which  was  too  remote,  were  void.  {lb.  441 — 2.) 
Lord  Eldon,  C,  held,  that  the  trust  for  accumulation  was 
void,  because  it  might  last  for  ages,  {lb.  450,)  but  that  the  trust 
[  419  ]  to  accumulate  would  not,  more  than  a  trust  for  payment  of 
debts,  prevent  the  vesting ;  and  that  the  eldest  grandson  took 
a  vested  estate  for  life,  and  was  entitled  in  possession  to  the 
rents  and  profits  of  the  real  estate,  and  the  dividends,  inter- 
est, and  annual  proceeds  of  the  personal  estate,  and  that  the 
remainders  over  were  valid. 


III.  5.  iii.]  OF  EXECUTORY  INTERESTS.  [§738b-738{J.        [  419  ] 


SECTION  THE  SECOND. 

The  Periods  to  which,  except  in  certain  cases,  ^Qccumula- 
tion  is  restricted  Inj  the  Stat.  39  &  40  (ieu.  III.  c.  98. 

738b  The  miscliicvons  extoiit  to  which  Mr.  TheUis- Origin  of  the 

son  availed  himseU"  of  the  power  of  creating  an  statute  39 
accumulation  which  formerly  existed,  gave  rise  to  the  statute  ^  4U  (Ji-o. 
39  &  40  Geo.  III.  c.  98,  for  preventing  the  recurrence  of  a  ^'^'  ^'  ^'^• 
disposition  which  was  alike    impolitic  and   unnatural;   as 
tending  to  withdraw  capital  from  general  circulation,  and  to 
keep  the  nearer  relations  of  a  settlor  or  testator  in  a  state  of 
indigence,  for  the  sake  of  augmenting  the  fortunes  of  some 

remote  and  unascertained  descendants. 
738c  By  the  first  section  of  that  statute,  it  is  enacted,  Enactments 

"that  no  person  or  persons  shall  ....  settle  or  thereof, 
dispose  of  any  real  or  personal  property,  so  and  in  such  man- 
ner that  the  rents,  issues,  profits,  or  produce  thereof,  shall  be 
wholly  or  partially  accumulated  for  any  longer  term  than 

"  The  life  or  lives  of  any  such  grantor  or  grantors,  settler 
or  settlers, 

"Or  the  term  of  21  years  from  the  death  of  any  such 
grantor,  settler,  devisor,  or  testator, 

"Or  during  the  minority  or  respective  minorities  of  any 
person  or  persons  who  shall  be  living,  or  in  i^entre  sa  mere 
at  the  time  of  the  death  of  such  grantor,  devisor,  or  testator, 

"  Or  during  the  minority  or  respective  minorities  only  of 
any  person  or  persons  who,  under  the  uses  or  trusts  of  the 
deed,  surrender,  will,  or  other  assurance,  directing  such 
accumulations,  would,  for  the  time  being,  if  of  full  age, 
be  entitled  unto  the  rents,  issues,  and  profits,  or  the  inter- 
est, dividends,  or  annual  produce  so  directed  to  be  accumu- 
lated." 

SECTION  THE  THIRD.  [  420  ] 

Observations  and  Decisions   respecting   the  Restrictions 
imposed  by  the  Statute. 

738d  I.  ''The  prohibition  of  the  statute  is  not  con- I.  The  stat- 

fuied  to  an  accumulation  for  the  benefit  of  persons  i''e  applies 
who  are  not  in  being  or  not  yet  ascertained,  though  the  •^^en  to  ac- 
principle  upon  which  such  prohibition  is  founded  certainly  <"'imiilation9 
applies  with  more  than  ordinary  Ibrce  to  such  cases;  but  it  '"  'av^'uroJ 
even  affects  accumulations  in  favour  of  persons  who  take  P*'^^*""^**  ^ 
vested  interests,  in  the  funds  accumulated,  from  the  verv  •  p     '\ 

'     lUtt'l'CStS. 

commencement  of  the  accumulation. (Z>) 

(&)  See  Shair  v.  Rhodes,  1  M.  ^-  C.  135,  stated  §  738k. 


[  420  ]        III.  5.  iii.] 


AN  ORIGINAL  VIEW    [§738e— 738li. 


II.  It  applies 
even  where 
accumula- 
tion is  not 
directed. 

See  §  741a. 

III.  Accu- 
nnilatioiis 
are  void  only 
as  to  the 
eventual 
excess. 

See  §  741a. 

IV.  Accu- 
[  421    ] 

mulation 
void  after 
21  years 
from  testa- 
tor's decease, 
though  it  has 
not  lasted 
that  time. 

V.  Whether 
accumula- 
tion may  be 
made  during 
minority  of 
person  not 
in  esse  at 
grantor's  or 
testator's 
death. 


II.  ''Tlie  statute  applies  to  such  dispositions  as         738c 
have  the  eftect  of  causing  an  accumulation,  though 

there  may  he  no  direction  to  accmnulate.(c)  This  is  clear 
from  the  introductory  words  of  prohibition  above  quoted-, 
though  it  is  observable,  that  the  clause  relating  to  the  des- 
tination of  the  income  released  from  accumulation,  only 
speaks  of  cases  where  an  accumulation  shall  be  "direct- 
ed." 

III.  ''It  is  not  required  that  the  whole  or  even  738f 
any  part  of  the  period  of  accumulation,  should,  by 

force  of  the  provisions  of  the  instrument,  necessarily  fall 
within  the  time  allowed  by  the  statute  ;  but  the  accumula- 
tion for  any  part  which,  in  the  events  that  happen,  chances 
actually  to  fall  within  that  time,  is  good. (a')  That  this  is 
the  true  construction  of  the  statute,  clearly  appears  from  the 
clause  respecting  the  destination  of  the  income  released  from 
accumulation. 

IV.  As  the  statute  does  not  allow  21   years'         738g 
accumulation,  unless  the  21  years  fall  within  21 

years  from  the  death  of  the  testator ;  '"  where  a  testator  di- 
rects the  accumulation  of  a  fund  to  commence  on  an  event 
or  at  a  time  subsequent  to  the  death  of  the  testator ;  the 
accumulation  becomes  void  at  the  expiration  of  21  years 
from  his  decease. (e) 

V.  If  there  were  no  decision  to  the  contrary,  738h 
it  would  seem  clear  that  the  statute  allows  an  accu- 
mulation during  the  minority  of  any  person  who,  if  of  full 
age,  would  be  entitled  to  the  income  accumulated,  whether 
such  person  was  in  esse  or  not  at  the  time  of  the  death  of 
the  grantor  or  testator.  For,  otherwise,  the  fourth  period 
mentioned  in  the  statute,  instead  of  constituting  a  distinct 
period,  is  in  fact  included,  and  specifically,  and  not  merely 
in  effect,  included,  in  the  preceding  period.  So  that,  accord- 
ing to  that  construction,  the  mention  of  that  period  would 
be  a  mere  unmeaning  surplusage.  And  it  is  observable 
that  the  word  "  only"  is  added  after  the  word  "  minorities," 
in  the  mention  of  the  period  lastly  specified  in  the  statute; 
whereas  it  is  not  added  after  the  word  "minorities,"  in  the 
mention  of  the  period  previously  specified  in  the  statute. 
This  would  seem  to  afford  some  indication,  that  by  the  mi- 
norities to  which  the  restrictive  word  "only"  is  added,  the 
minorities  of  persons  not  in  esse  at  the  death  of  the  grantor 
or  testator,  were  meant.     For,  it  would  seem  that  the  word 


(c)  See  M'Donald  v.  Brice,  2  Keen,  276,  stated  §  731e. 

(d)  See  ShaiD  v.  Rhodes,  1  M.  &  C.  135,  stated  §  738k.  See  also  Griffiths 
V.  Vere,  9  Ves.  127;  and  Longdon  v.  Simpson,  12  Vcs.  295;  and  Crawley  v. 
Crawley,  7  Sim.  527,  stated  §  741d. 

(e)  Webb  v.  fVebb,  2  Beav.  493. 


11.5.  iv.]  OF  EXECUTORY  INTERESTS.  [§7381,  738j.        [  421   J 

"  only"  was  added,  to  prevent  an  accnniulation  during  a 
life  or  lives  in  bcinc^,  in  addition  to  the  j)eriod  of  the 
minority  of  an  unborn  person,  for  which  time  it  was  allow- 
able to  accumulate  before  the  statute,  and  to  restrict  it 
to  the  minority  or  minorities  only  of  an  unborn  person  or 
persons. 

There  is  however  a  decision   to  the  contrary;  but  it  is  Ihiley  v. 
conceived   that  it  cannot  be  supported.     In  that  case,  the  Hannister,  1 
dividends  on  a  sum  of  slock  were  directed  to  be  accumu-  Mad.  278. 
lated    till  one  of  the  children  of  t^.,  born,  or  to  be  born, 
should  attain  21,  at  which    time  the  principal  was  to   be 
transferred  to  such  children.     Sir  John  Leach,  V.  C,  said, 
"  the  statute  (39  &  40  Geo.  III.  c.  98)  prevents  an  accumu- 
lation of  interest  during  the  minority  of  an  unborn  child;        [  422  ] 
but,  as  to    the   principal,  the    law  remains  as   before   the 
statute.     The    excess    of  accumulation    prohibited    by   the 
statute,  would  form  part  of  the  residue." 

SECTION  THE  FOURTH. 

The  Saviyig  Clause  in  Ihe  Staiiite. 

73Si  Bv  the  second  section  it  is  enacted,  ''that  nothing  Words  of  the 

in  this  Act  shall  extend  to  any  provision  for  Pay-  Act, 
ment  of  Debts  of  any  grantor,  settler,  or  devisor,  or  other 
person  or  persons, 

"  Or  to  any  provision  for  raising  Portions  for  any  child  or 
children  of  any  grantor,  settler  or  devisor,  or  any  child  or 
children  of  any  person  taking  any  interest  under  any  such 
conveyance,  settlement  or  devise, 

"  Or  to  any  direction  toucliing  the  produce  of  Timber  or 
Wood  upon  any  lands  or  tenements,  but  that  all  such  provi- 
sions and  directions  shall  and  may  be  made  and  given  as  if 

this  Act  liad  not  passed." 
738j  It  is  conceived  that  the  word  interest,  as  used  in  Meaning  of 

the  second  of  the  above  exceptions,  refers  to  a  free-  the  word  in- 
hold  interest,  or  at  least  to  a  long  term  for  years,  in  the  pro-  tcrest  in  the 
pcrty,  the  income  of  which  is  directed   to  be  accumulated,  sorond  ex- 
or  to  an  interest  in  the  funds  accumulated,  considered  as  a  ccptiou. 
certain  ro/yn/?,  analogous  to  a  corporeal  hereditament;  and 
that  it  does  not  refer  to  a  mere  right  to  something  issuing 
out  of  or  collateral   to  such  property  or  accmmilatcd  funds. 
Indeed,  if  it  were  otherwise,  the  exception  would  open  so 
wide  a  door  to  provisions  for  accumulation,  as  virtually  to 
repeal  the  Act,  the  second  exception  of  which,  as  Mr.  Pres- 
ton has  observed,  'seems  to  have  been  inserted  to  prevent 
the  necessity  of  the  nobility  '"disposing  of  their  landed  pro- 
perty for  the  purpose  of  raising  portions  for  their  younger 
children,  or   the   children   of  those    for   whom  they   were 
Vol.  II. — 13 


[  422  ]         III.  .5.  iv.] 


AN  ORIGINAL  VIEW 


[§738k. 


[   423   ] 


An  annuity 
is  not  an  in- 
terest within 
the  second 
except  ion. 
Shaw  V. 
Rhodes,  1 
M.  &  C. 
135. 


[  424   ] 


providing,"(/)  in  the  ordinary  cases  (may  it  not  be  added  ?) 
where  the  parents  tliemselves  took  interests  in  the  land 
itseU',  as  tenants  for  life,  or  in  tail,  or  at  least  as  termors  for 
years  determinable  npon  their  deaths. 

It  has  been  deeidcd  that  an  annnity  payable  ont         73Sk 
of  the  rents  and  profits  to  be  accumulated,  is  not 
an  interest  within  the  meaning  of  the  second  exception  in 
the  Act. 

A  testator,  after  charging  his  estates  with  an  annnity  to 
his  son  J.  S..  of  400/.;  an  annnity  to  his  son  T.  S.,o(  100/.; 
and  an  annnity  to  his  danghter,  of  100/.;  and  directing  that 
the  legatees  who  should  become  entitled  to  any  annual  pay- 
ments, or  to  the  accumulations  thereinafter  mentioned,  should 
not  be  paid  by  anticipation  ;  devised  the  same  estates,  upon 
trust  to  invest  and  accumulate  the  surplus  produce  thereof 
for  the  benefit  of  his  grandchildren,  then  born,  or  thereafter 
to  be  born,  until  the  youngest  should  attain  21,  when  the 
accumulations  were  to  be  equally  divided  among  sucli  of  his 
grandchildren  us  should  then  be  living.  And  he  directed, 
that  in  case  any  of  his  said  children  should  be  living  after 
the  youngest  of  his  grandchildren  should  have  attained  21, 
the  residue  of  the  said  rents  and  profits  should  be  further 
accumulated,  and  that  such  last  mentioned  accumulation 
should  be  equally  divided  among  all  his  grandchildren  who 
should  be  living  at  the  death  of  the  survivor  of  his  said  sons 
and  daughter.  And,  charged  as  aforesaid,  he  directed,  that 
immediately  after  the  decease  of  the  survivor  of  them  his 
sons  and  daughter,  the  whole  of  his  said  estates  should  stand 
charged  for  20  years  with  the  payment  of  two  third  parts  of 
the  clear  produce,  in  equal  shares  and  proportions,  of  so 
much  money  as  would  in  15  years  make  in  the  whole, 
30,000/.;  and  which  sum,  with  the  interest  and  produce 
thereof,  he  directed  should  be  equally  divided  among  all  his 
grandchildren  who  should  live  to  attain  21,  their  executors 
or  administrators.  Tlie  testator  died  in  the  year  1812,  leav- 
ing ten  grandchildren,  of  whom  nine  were  the  cliildren  of 
J.  *S'.,  and  the  tenth  was  the  child  of  a  son  of  the  testator 
who  died  before  the  will  was  made.  No  grandchildren 
were  born  after  the  making  of  the  will.  The  ten  who  sur- 
vived the  testator  attained  their  majority;  the  eldest  having 
come  of  age  before  the  execution  of  the  will,  and  the  young- 
est in  the  year  1830.  Tfie  daughter  survived  the  two  sons, 
and  died  in  the  year  1831.  The  Vicc-Chaticcllor  held,  that 
the  gift  of  30,000/.  was  valid  as  a  charge;  and  that  the 
grandchildren  were  entitled  to  that  sum,  to  be  raised  within 
20  years  from  the  death  of  the  daughter,  out  of  the  two 
thirds  of  the  rents  and  profits,  by  annual  payments  of  1500/., 


(/)  Fearne,  541,  note  (j-). 


III.  5.  iv.]     OF  EXECUTORY  INTERESTS.       [§73Sk.        [  424  ] 

to  be  deducted  out  of  the  rents  and  profits.  The  cause  was 
brought  by  appeal  before  Lord  Brougham,  C,  who  was 
inchned  to  think,  with  the  Vice-Cliancellor,  that  it  was  not 
an  accumulation  proliihiled  by  the  Thciusson  Act,  but  deem- 
ed it  advisable  to  direct  a  case  for  a  Court  of  Law.  It  being 
found  impossible  to  frame  a  case  which  would  fairly  submit 
the  point  as  a  legal  question;  the  ap[)eal  was  reheard  before 
the  Lords  Conmiissioners;  and  judgment  was  afterwards 
given  by  Lord  Cottenham,  C,  reversing  the  decree  of  the 
Vice-Chaiicellor,  in  accordance  with  the  opinion  of  Mr. 
Justice  IJosanquet,  one  of  the  Lords  Commissioners,  who, 
at  the  Lord  Chancellor's  request,  stated  the  reasons  which 
he  was  prepared  to  give,  if  the  case  had  been  set  down  lor 
judgment  before  the  expiration  of  the  Commission. 

It  had  been  argued  for  the  respondents,  that  a  direction  to 
raise  30,000/.  by  a  charge  on  the  annual  profits  of  an  estate 
or  on  a  fixed  proportion  of  those  profits,  was  not  an  accu- 
mulation, merely  because  the  time  of  payment  is  postponed; 
each  successive  portion,  as  it  from  year  to  year  accrued,  in- 
stantly became  a  vested  interest, capable  of  being  dealt  with 
and  disposed  of,  although  not  actually  receivable  till  the 
whole  burden  had  been  discharged;  and  that, in  fact,  there- 
fore, the  gift  in  question  was  no  more  than  a  deferred  charge. 
(1  M.  &  C.  148.)  That,  in  a  sense  indeed,  it  might  be  said 
that  this  was  a  trust  for  accumulation,  inasmuch  as  tiie  very 
nature  of  every  charge  im])lies,  that  the  growing  profits  of 
the  subject  cliargcd  should  be  laid  up  and  appropriated  to 
satisfy  the  burde^i;  but  that  that  was  not  the  species  of  accu- 
mulation struck  at  in  the  Thelusson  Act.  That  that  act  had 
reference  solely  to  an  accumulation  such  as  that  directed  in 
the  two  preceding  clauses  of  the  present  will,  the  efiect  of 
which  is  imperatively  to  lock  up  the  rents  of  an  estate,  while 
these  go  on  accumulating  at  compound  interest  for  a  long  [  425  ] 
series  of  years,  for  the  benefit  of  an  individual  or  a  class  of 
takers  who  acfjuire  no  certain  and  vested  interest  in  any 
portion  of  the  fund  until  the  determination  of  the  prescribed 
period  when  the  aggregate  fund  becomes  divisible.  {lb.  149, 
150.)  That,  at  all  events,  the  case  fell  within  the  second 
exception  in  the  Act,  respecting  provisions  for  raising  por- 
tions for  children  of  persons  taking  an  interest  under  the 
devise.  {lb.  150.) 

Mr.  Justice  Bosanquet,  in  reply  to  these  arguments, 
observed,  That  there  were  three  clauses  in  the  will  bearing 
upon  the  subject.  That  it  appeared  from  them,  that  the 
whole  surplus  rents  and  profits  were  to  be  accumulated: 
first,  until  the  youngest  grandchild  should  attain  21,  when  a 
division  among  the  grandchildren  then  living,  was  to  take 
place;  and  then  a  second  accumulation  was  to  commence, 
and  be  continued  until  the  death  of  all  the  testator's  own 


[  425  J        HI.  5.  iv.]  AN  ORIGINAL  A^IEW  [§73Sk. 

children,  if  any  of  them  should  outlive  the  period  at  which 
the  youngest  grandchild  should  attain  21,  when  a  further 
division  among  the  grandchildren  then  living,  was  to  be 
made.     That  both  these  clauses  had  taken  effect;  and  the 
question  then   was,  whether  the  third  clause,  which  came 
into  operation  in  the  year  1831,  on  the  death  of  his  last  sur- 
viving child,  19  years  from  the  death  of  the  testator,  could 
be  carried  into  ctiect  beyond  the  year  1833.     That  no  one 
of  the  three  clauses  was  illegal  on  the  ground  of  being  too 
remote,  except  so  far  as  it  was  atTected  by  the  Thelusson 
Act,  since  no  one  of  them  embraced  a  greater  length  of  time 
than  the  period  allowed  for  executory  devises  [the  charges 
being  in  favour  of  a  class  of  persons  all  of  whom  must  neces- 
sarily be  ascertained,  at  the  latest,  at  the  end  of  21  years 
after  the  determination  of  three  lives  which  were  all  in  being 
at  the  time  when  the  will  spoke,  namely,  of  the  testator's 
three  children,  {lb.  146,)]  and  that  consequently  any  accu- 
mulation required  to  be  made  by   the  clause  in  question, 
could  only  be  void  for  the  excess  of  time  beyond  21  years 
from  the  death  of  the  testator,  that  is,  for  the  excess  of  time 
from  and  after  the  10th  of  July  1833,  the  death  of  the  tes- 
tator having  occurred  on  the  10th  of  July  1812.     That  the 
[  426  ]        preamble  of  the  statute  recited,  that  it  was  expedient  that  all 
dispositions  of  real  or  personal  estates,  whereby  the  profits 
and  produce  thereof  are  directed  to  be  accumulated,  and  the 
beneficial  enjoyment  thereof  postponed,   should   be   made 
subject  to  restrictions.     That,  in  the  principal  case,  the  gift 
to  the  grandchildren  was  only  to  be  found  in  the  direction 
to  divide,  and  they  were  not  entitled  to  any  division  of  any 
portion  of  the  rents  and  profits  de  anno  in  annum,  but  at 
the  expiration  of  15  years,  if  two-thirds  of  the  rents  and 
profits  should  then  have  amounted  to  the  sum  of  30,000/. ; 
if  it  fell   short  of  that  sum,  they  would  be   entitled  to  a 
further  accumulation  till  the  expiration  of  20  years,  for  the 
purpose  of  making  good  the  deficiency,  and  also  (he  appre- 
hended) of  paying  interest  on  30,000/.  from  the  expiration 
of  the  15  years  to  the  end  of  20  years.     That  no  term  was 
created,  nor  was  any  power  given  to  raise  the  money  by 
mortgage  or  sale  for  the  time  during  which  the  estate  was 
charged  ;  and  though,  when  the  daughter  died,  the  interests 
of  the  grandchildren  were  vested  interests,  yet  the  testator 
had  expressed  a  strong  disapprobation  of  all  anticipation  of 
benefits  given  by  his  will,  and  intended  that  the  beneficial 
enjoyment  of  the  aniuial  produce  should  be  postponed  till 
the  whole  sum  to  be  divided  should  be  accumulated.     {lb. 
153 — 157.)     That  he  was  therefore  of  opinion,  that,  accord- 
ing to  the  true  construction  of  the  third  clause,  an  accumula- 
tion of  a  portion  of  the  rents  and  profits  was  required  to  be 
made ;  that  sucii  portion,  whatever  it  might  be,  was  with- 


III.  5.  v.]     OF  EXECUTORY  INTERESTS.  [§739.        [  42G  ] 

drawn  from  beneficial  enjoyment  during  the  period  of  accu- 
mulation, and  was  a  partial  accumulation  within  the  mean- 
ins:  of  the  statute,  and  consequently  void,  so  lar  as  that 
period  exceeded  21  years  (Voni  the  death  of  the  testator.  {lb. 
158,  159.)  That  he  did  not  ihiidf  the  case  fell  within  the 
meaning  of  the  second  exception  in  the  statute  ;  for,  where 
the  whole  rents  and  profits  were  given  in  the  first  place  to 
persons  during  the  lives  of  their  parents,  with  the  exception 
of  small  aimuities  only  to  be  paid  thereout  to  the  parents 
themselves  for  their  own  lives,  and  a  gift  to  the  same  per- 
sons, after  the  death  of  their  parents,  is  superadded,  to  be 
paid  out  of  the  subsequent  rents  and  profits,  he  could  not 
think  that  the  superadded  gift  is  to  be  considered  within  the 
meaning  of  the  statute,  in  the  nature  of  a  portion  to  the  [  427  ] 
children  of  persons  taking  an  interest  under  the  devise. 
{lb.  159.) 

SECTION  THE  FIFTH. 

Of  the  Intermediate  Income  accruing  before  the  Vesting 
of  an  Executory  Devise  or  Bequest,  where  such  Income 
is  not  affected  by  the  Statute  of  Accumulations.  j  -^y, 

739  I.  e  Where  there  is  an  executory  devise  of  real  there  is  no 

estate,  and  the  freehold,  between  the  death  of  the  disposition 
testator  or  the  delerniination  of  a  preceding  estate,  and  the  of  the 
vesting  of  an  executory  devise,  is  not  disposed  of,  the  free-  immediate 
hold  and  inheritance  descend  to  the  heir  at  law.(o-)  freehold. 

The  position  in  which  the  heir  at  law  stands,  and  the  Observations 
circumstances  under  which  alone  he  is  excluded,  are  lucidly  of  Lord 
explained  by  Lord   Brougham,  in  the  case   of  Ackers  v.  Brougham 
Phipps,  3  Clark  &  Finellv,  GS9,  before  the  House  of  Lords:  o"  the  posi- 
"  The  heir  at  law,"  says  "His  Lordship,  "  takes  through  no  j'°"  *^'  j" ®^ 
intention  of  the  testator,  but  paramount  the  will,  and  inde-  ^^"  ^    ^^' 
pendent  of  it,  or,  as  it  has  been  sometimes  expressed  and 
not  very  correctly,  against  the  will.     This  is  indeed  quite 
plain :  it  is  only  saying,  that  he  takes  as  heir,  and  not  as 
purchaser.     But,  from  this,  it  follows,  that  he  has  no  occa- 
sion at  all  for  arguments  upon  construction,  or  to  ascertain 
intentions  in  his  favour.    The  arguments  belong  to  the  party 
who  would  displace  him,  and  by  means  of  the  intention  ex- 
pressed, defeat  his  claim ;  nor  can  he  be  so  displaced  and 
defeated  except  by  direct  words  or  plain  intention — an  ex- 
pression which  I  prefer  to  necessary  intention.    There  nmst 
appear  to  be  such  an  intention  to  exclude  him  as  to  leave 

{g)  DufM  V.  Dtifehl,  1  Dow  &  Clark,  268,  stated  §  281  ;  Pay's  Case,  Cro. 
Eli/..  878";  Clarke  v.  Smith,  1  Lutw.  798  ;  Gore  v.  Gore,  2  P.  W.  28  ;  JIay- 
u-anl  V.  StillingJ/ect,  1  Atk.  422  ;  Hopkins  v.  Hopkins,  Cas.  temp.  Talb.  44  ; 
ami  Bullock  v.  Stones,  2  Ves.  o'-ll  ;  as  !-;tatcd,  Fearne,  537 — 54.'^. 


[  427  ]        III.  5.  v.]  AN  ORIGINAL  VIEW         [§740—741. 

no  reasonable  doubt  in  the  Court  that  it  existed  in  the  mind 
[  42S  ]  of  the  testator  :  and  it  will  manifestly  not  be  sufficient,  that, 
from  the  general  circumstances  and  situation  of  the  party, 
or  even  from  the  general  aspect  of  the  instrument,  we  may 
have  no  moral  doubt  of  how  the  framer  of  it  wonld  have 
answered  the  question,  had  he  been  asked  to  declare  his 
meaning;  for,  this  is  to  let  in  every  case  of  plain  omission 
by  mistake,  and  of  gift  by  inept  words,  or  in  contravention 
of  the  rules  of  law.  The  words  used  in  the  will  must  be 
snfficiem,  according  to  their  legal  sense,  and  within  the  rules 

II.  Where      of  law,  to  indicate  the  intention." 

there  is  no  n.  '»  Where  the  intermediate  income  of  personal  740 

disposition  of  estate  is  entirely  undisposed  of,  or  there  is  only  a 
the  interme-  partial  disposition  thereof  which  is  not  for  the  maintenance 
diate  income  ^j.  gdncation  of  the  person  to  whom  the  executory  bequest 
of  personal  -^  ^^^^q  .  ^j^g  whole  of  the  intermediate  income,  in  the  first 
estate,  or  ^^^^^  ^^^^  ^j^^  surplus  of  it,  in  the  second,  will  accumulate 
\?tY  ^^^^■'  fo'*  ^'^^  benefit  of  the  person  who  may  happen  to  acquire 
tui  'sposi-  J  ^  vested  interest  after  the  accrual  of  such  income. (A) 
lion  which  IS        ,  _  ,  .  •  ■       r      *i  •    » 

not  for  the  ^  testator,  after  makmg  a  provision  tor  the  maintenance 

benefit  of  the  of  his  son  T.  fV.  G.,  and  of  his  daughter  E.  G.,  gave  all 
person  to  the  residue  of  his  real  and  personal  estate  to  T.  TV.  G.,  to 
whom  the  be  a  vested  interest  upon  his  attaining  21 ;  provided,  that, 
executory  in  case  he  should  die  before  21,  then,  alt  the  residue  should 
bequest  is  go  to  B.  G.;  with  other  limitations  over.  Sir  W.  Grant, 
made.  M.  R.,  held,  that  the  interest  of  T.   IV.  G.  was  contingent 

Glanril  v.  till  21;  and  therefore,  that  by  virtue  of  the  will,  the  rents 
Glanvil,  2  and  interest  of  the  real  and  personal  estate  were  to  accu- 
Meriv.  38.      mulate  till  he  attained  that  age. 

III.  Where  HI-  I^ut  where  the  intermediate  income  of  740a 
the  interme-  personal    estate  is  partially  disposed   of   for   the 

diate  income  benefit  of  the  person  to  whom  the  executory  beqnest  is 
of  personal  made,  the  rest  of  the  intermediate  income  will  fall  into  the 
estate  is  par-  residue :  for,  it  is  a  maxim,  that  expressum,  facit  cessare 
tially  dis-        taciturn. 

[  429  ]  Thus,  where  a  testator  gave  a  sum  of  money,  in  trust  for 

posed  of  for  unborn  children,  and  directed  that  until  their  shares  shonid 
his  benefit,  become  payable,  the  interest  should  be  applied  in  their  main- 
Harrisv.  tenance  ;  Lord  Eldon,  C,  held,  that  the  interest  before  the 
L%rZ,Turn.  j^jj.^^^  ^f  .^  ^^^\^^  f^H  j^j^  ^^^  residue. 

rv'-  \\n^^'  ^^'  '  '^"^'  '^h^'"'^  ^^^"^^  ^^  ^  devise  or  bequest  of  741 

IV  .  VV  liere     ^|j  ^j^^  ^^^^  ^^  personal  estate,  or  both,  the  interme- 
thcre  IS  are-  ^.^^^  income  accruing  between  the  death  of  the  testator  or 
^'seT^b*^-'    ^^^  determination  of  a  preceding  estate,  and  the  vesting  of 
Quest^    ^  '     ^"  executory  devise  or  bequest,  belongs  to  the  residuary 


{h)  Atkinson  v.  Turner,  Barnardist.  Rep.  Chnn.  74  ;  Studholme  v.  Hodgson, 
3  P.  W.  300  ;  and  Bullock  v.  Stones,  2  Ves.  Sen.  52  ;  as  stated,  Fearne, 
546—7. 


III.  5.  vi.]     OF  EXECUTORY  INTERESTS.       [§741a.        [  429  ] 

devisee  or  legatee,  whether  he  is  the  same  person  who  is 
eiitillcd  to  the  executory  devise  or  bequest,  or  not.(i) 

Thus,  id  a  case  where  a  testator  devised  all   his   real  and  Phipps  v. 
personal  estate  to  trustees,  (with  power  to  sell  all  except  a  Wdlams.h 
certain   part,  and  add  the  monies  arising  from  such  sale  to  ^'m- 44 ; 
liis  personal  estate)  upon  a  certain  trust,  as  to  a  part,  and  as  ''^-  ^'-  "'^'"• 
to  a  certain  sum  of  money,  for  G.  11.  ,fl.     And  as  to  the  ^^^'.^^^^  ^'• 
rest,  residue,  and  remainder,  of  his  personal  estate,  he  direct-  iJj'^^'J"'^  ^ 
ed  it  to  accumulute  at   compound  interest  until  J.  C.  »/l.^}       p.  ^ 
should  attain  24  years;   then,  upon  trust  to  convey,  assign  t>'|"",j/43o 
&c.  unto   the  said  ./.  C.  A.  (upon  his  giving  security,  and       »  '    '    • 
executing  such  deeds  and  assurances,  to  the  satisfaction  of 
the  said   trustees,  for   the   regular  payment  of  the  several 
annuities  before  bequeathed)  all  the  legal  estate  and  interest 
of  and  in  all  the  freehold,  leasehold,  and  copyhold  lands, 
tenements,  rents,  and  hereditaments,  and  all  other  the  testa- 
tor's real  and  personal  estate  whatsoever  and  wheresoever 
not  devised  and  bequeathed.     And  the  testator  directetl  the 
trustees  to  pay  a  large  sum  amuially  for   the   maintenance 
and  education  of  the  said  J.  C.  Jl.     The   heir  at  law  (be-  See  Phipps 
sides  claiming  the  estates  devised  to  G.  H.Ji.  which  accrued  v.  Ackers,  5 
before  he  attained  21,  and  which  were  not  claimed  by,/.  C.  Sim.  704. 
A.)  claimed  the  rents  of  the  estate  devised  to  J.  C.  Jl.  until        [  430  ] 
he  attained  24.     The  Vice-Chancellor  held,  that  the  words 
respecting  the  giving  security  and  the  execution  of  deeds 
and  assurances  by  J.  C.  A.  were  clearly  a  condition  prece- 
dent, and,  till  that  was  performed,  his  interest  was  contin- 
gent; and  as  there  was  no  trust  for  the  account  of  the  rents, 
that  the  rents  and  profits  of  the  residue  of  the  real  estate 
belonged  to  the  heir.     The  House  of  Lords,  however,  deci- 
ded, that  the  residuary  gift  of  real  and  personal  estate  to  J. 
C.  A.  displaced  the  heir,  as  to  the  rents  and  profits  between 
the  time  of  the  testator's  death  and  the  attaiimient  of  the  age 
of  24  by  J.  C.  Jl. 

SECTION  THE  SIXTH. 

The  Destinatio7i  of  the  Incornc  released  from  Accumula- 
tion hy  the  Statute. 

741a  Bv  the  first  section  of  the  statute,  it  is  enacted.  Words  of 

that  "  in  every  case  where  any  accumulation  shall  the  Act. 
be  directed  otherwise  tlian  as  aforesaid,  such  direction  shall 
be  null  and  void,  and  the  rents,  issues,  profits,  and  produce 
of  such  property  so  directed  to  be  accumulated,  shall,  so 

(i)  Stephens  v.  Stephens,  Cas.  temp.  Talb.  228  ;  Gibson  v.  Lord  Montfort, 
and  Rogers  v.  Gibson,  1  Ves.  485;  Chapmanv.  Blissctt, Cas.  temp.  Talb.  145; 
and  Duke  of  Bridgewater  v,  Egerton,  2  Ves.  121 — 2 ;  as  stated,  Fearne,  54  I — 
5.     Gcncrrj  v.  Fitzgerald,  Jac.  468. 


[  430  ]        III.  5.  vi.]  AN  ORIGINAL  VIEW     [§741b— 71ld. 

long  as  the  same  shall  be  directed  to  be  accumulated  con- 
trary  to  the  provisions  of  this  Act,  go  to  and  be  received  by- 
such  person  or  persons  as  would  have  been  entitled  thereto 
if  such  accumulation  had  not  been  directed." 
Effect  of  this  It  appears  from  several  decisions  upon  the  sub-  74lb 
clause.  ject,  that  the  effect  of  this  clause,  is,  to  release  the 

income  from  being  accumulated  for  any  longer  period  than 
that  which  is  allowed  by  the  Act,  and  to  subject  it  to  the 
operation  of  the  otlier  parts  of  the  will,  so  far  as  they  can 
apply  in  the  disposition  thereof;  or,  to  the  operation  of  the 
ordinary  rules  respecting  the  disposition  of  real  property 
which  is  not  disposed  of  by  a  will,  or  the  operation  of  the 
statute  of  distributions,  in  case  the  other  parts  of  the  will, 
[  431  ]  the  trust  for  accumulation  being  removed,  cannot  pass  such 
income  so  released  from  the  trust  for  accumulation.  And 
hence  the  excess  of  accumulation  may  belong,  in  some  cases, 
to  a  person  entitled  to  a  vested  particular  interest;  in  other 
cases,  to  a  residuary  devisee  or  legatee  ;  in  other  cases,  to 
the  heir  at  law,  or  the  next  of  kin.     Thus, 

I.  Where  the  I.  '^  Where  a  trust  for  accumulation  is  engrafted  741c 
trust  for  ac-  on  a  vested  interest,  so  as  to  operate  by  way  of 
cumulation  exception  out  of  such  vested  interest,  the  excess  of  accumu- 
is  engrafted  lation  will  belong  to  the  person  entitled  to  such  vested  inte- 
on  a  vested  rest.(/t)  For,  the  income  being  released  from  the  trust  for 
interest,  and  accumulation,  constitutes  an  incident  to  such  vested  interest, 
the  income     g^g  j^  ^yould  if  no  accumulation  had  been  directed. 

goes  to  tlie         jj_  j3^^j^  where  the  income  of  a  particular  legacy         741d 
person  hav-    ^^  portion  of  property,  is  to  be  accumulated   prior 
ing  such        ^^  jj^g  vesting  of  such  legacy  or  portion  of  property,  the  in- 
m  eras  .         ^ome  accruing  beyond  the  period  allowed  by  the  statute  for 

II.  Where  It  accunuilation,  upon  or  from  such  legacy  or  portion  of  pro- 
goes  to  the  perty,  and  upon  or  from  the  accumulation  made  within  the 
residuary  do-  p^j.-^^  allowed  by  the  statute,  goes  to  the  residuary  devisee 
\isee  or  e-  ^^  legatee,  if  there  is  a  residuary  devise  or  bequest,  or  to  the 
^^  ^^*  lieir  at  law,  in  the  case  of  real  estate,  or  the  next  of  kin,  in 

the  case  of  personal  estate,  if  there  is  no  residuary  devise 
or  bequest. 
Grounds  of  For,  it  cannot  be  considered  that  the  persons  to  whom  the 
the  rule.  contingent  devise  or  bequest  is  made,  would  have  been  en- 
titled to  the  income  if  an  accumulation  had  not  been  express- 
ly or  impliedly  directed  or  authorised:  for,  as  their  interest 
is  only  contingent,  they  could  have  no  right  to  the  inter- 
mediate income,  prior  to  the  vesting  of  such  interest ;  and, 
as  it  is  uncertain  whether  that  interest  will  ever  vest,  it  can- 
not be  said,  with  any  degree  of  truth,  that  they  would  even 
eventually  have  been  entitled  to  the  intermediate  income,  if 
an  accumulation  had  not  been  expressly  or  impliedly  direct- 


(k)  See  Trickcy  v.  Trickey,  3  M.  &  K.  5GU. 


III.  5.  vi.]    OF  EXECUTORY  INTERESTS.        [§7ne.        [  432  ] 

ed  or  authorised.  And  hence  the  income  accruing  beyond 
the  period  allowed,  is  held  to  belong  to  the  residuary  devisee 
or  legatee. 

A  testatrix  gave   SOOO/.  in  trust  to  accnnuilatc  until  A.  Crawley  v. 
should  attain  25;  and  when  he  should   have  attainf.-d  that  CVa/r/r//,  7 
age,  in  trust  to  transfer  the  SOOO/.  and  the  accumulations  Sim.  427. 
thereof,  to  him.     Sir  L.  Shadwell,  V.  C,  held,  that  the  trust  See  also 
was  good  for  21  years  after  the  testatrix's  death,  but  was  O'^^eillv. 
void  for  the  excess  beyond  that  period,  and  that  the  accu-  lif"'^"*' ^ 
niulation  beyond  that  period  would  fall  into  the  residue,  and  '^^^"'  ''^   • 

form  part  of  the  capital  thcreoi". 
741  III.  Where  the  income  of  residuary  proi)erty  is  ni.  Where 

to  be  accumulated  prior  to  the  vesting  indefeasibly  it  goes  to  the 
of  such  residuary  property;  the  income  accruing  beyond  the  h^ir  or  ne.xt 
period  allowed   by  the   statute  for  accumulation,  upon  or  of  kin. 
from  such  residuary  property,  and  upon  or  from  the  accu- 
mulations made  within   the  period  allowed  by  the  statute, 
goes  to  the  heir  at  law,  in  the  case  of  real  estate,  or  to  the 
next  of  kin,  in  the  case  of  personal  estate. 

In  this  case,  the  income  to  be  accumulated  could  not  go  Grounds  of 
to  the  residuary  devisees  or  legatees.  It  could  not  be  allow-  the  rule, 
ed  to  form  part  of  the  capital  of  the  residue ;  because  that 
would  be  contrary  to  the  statute,  the  income  to  be  accumu- 
lated, in  the  supposed  case,  being  that  of  residuary  property. 
Nor  could  it  form  part  of  the  income  of  the  residuary  pro- 
perty; because  that  would  have  been  contrary  to  the  other 
parts  of  the  will :  for,  that  would  have  been  giving  the  resi- 
duary devisees  or  legatees  an  immediate  enjoyment,  though 
the  will  had  given  them  only  a  contingent  right,  or,  at  most, 
only  a  present  but  defeasible  right  of  future  enjoyment. 

A  testator  gave  the  residue  of  his  property  to  B.  S.,  eldest  M'Donald 
son  of  P.  S.,  on  his  coming  of  age  :  failing  him,  to  the  next  v.  Brice,  2 
male  child  of  F.  S.  who  should  attain  21;  failing  the  male  Keen,  276. 
children  of  P.  S.,  to  certain  other  legatees.     B.  S.  survived 
the  testator,  and  died  an  infant;  and  P.  -S'.,  who  was  far 
advanced  in  years,  had  no  other  son.     The  period  expired, 
which  the  statute  allowed  for  the  accumulation  which  result- 
ed from  the  suspension  of  the  vesting  of  the  limitation  to 
the  first  son  who  should  attain  21,  or  of  the  alternative  limi- 
tation to  the  other  legatees.     And  Lord  Langdale,  M.  R., 
held,  that  the  dividends  to  accrue,  till  the  determination  of        [  433  ] 
the  contingency  upon  which  the  residue  was  given,  on  the 
residue  and  its  lawful  accumulations,  belonged  to  the  next 
of  kin,  and  not  to  the  residuary  legatees. 

In  another  case,  a  testator  gave  certain  annuities  out  o{  Eyre  \. 
liis  residuary  estate,  to  his  three  children  ;  and  rerpiested  Mursdrn,  2 
that  the  surplus  of  the  annual  incoriie  might  be  applied  in  Keen,  504. 
accunuilalion  of  the  capital  of  his  properly,  for  the  benefit 
of  his  ^grandchildren,  and  which  was  to  be  divided  among 
Vol.  II. — 1 1 


[  433  ]        HI.  6.]  AN  ORIGINAL  VIEW  [§742,743. 

tliom  after  the  death  of  the  survivor  of  his  three  children. 
And  the  will  contained  clauses  substituting  the  issue  of 
grandchildren  dying  leaving  children  for  such  grandchildren; 
and  carrying  over  to  the  survivors  the  shares  of  such  as 
should  die  without  children.  Thirty  years  elapsed  between 
the  death  of  the  testator  and  the  death  of  the  survivor  of  his 
children.  Lord  Langdale,  M.  R.,  held,  that  as  two  of  the 
grandchildren  were  not  the  children  of  any  person  taking 
an  interest  under  the  will,  and  as  the  accumulation  seemed 
to  be  a  provision,  not  for  raising  portions,  but  for  making 
additions  to  the  capital  for  the  purpose  of  making  one  gift 
of  an  aggregate  fund,  the  case  was  not  within  the  exception 
of  the  Act.  And  his  Lordship  also  held,  that  the  accumu- 
lations beyond  21  years  from  the  testator's  death,  arising 
from  the  personal  estate,  belonged  to  the  next  of  kin,  and 
not  to  the  residuary  legatees,  and  that  those  arising  from 
the  real  estate,  belonged  to  the  heir  at  law.  "  Nothing," 
observed  His  Lordship,  "is  to  be  paid  to  the  grand- 
children until  the  death  of  the  surviving  child,  and  in  the 
meantime  the  interests  of  the  grandchildren  may  be  de- 
vested, and  become  vested  in  other  persons;  and  to  direct 
that  payments  shall  be  made  at  the  end  of  21  years,  before 
the  death  of  the  testator's  surviving  child,  would  be  to 
direct  that  which  the  testator  has  not  directed,  and  to 
give  and  defeat  interests  directly  contrary  to  his  meaning 
and  intention." 


[  434  ]  CHAPTER  THE  SIXTH. 

I.  Division  pp    ,^jjj,    TRANSMISSION    OF    EXECUTORY    INTERESTS. 

of  executory 

interests         ^    Looking  to  the  capacity  of  transmission,  in  case  742 

^c    to  the     "^  death  before   the  contingency  happens,  as  such 

^a^aci'tv  of    capacity  exists  at  the  time  of  their  limitation,  1.  Some  execu- 

^ransmission  ^ory  interests  are  transmissible  in  all  events.     2.  Others  are 

existin"  at     untransmissible.     3.  Others  are  transmissible  in  some  events 

the  tim^j  of    only. 

thrjir  lirni-  1.   Executory  interests  in  real  property,  which  743 

tation.  are  not  contingent  on  account  of  the  person  (§  94), 

l.Transmis-  descend  to  the  heir  of  the  persons  to  whom  tliey  are  limited, 

si'ble  in  all     and  such  '^ executory  interests  in  personal  property,  pass  to 

events.  the  executor  or  administrator(«)  of  the  persons  to  whom 

(a)  Plnhury  v.  Elkln,  1   P.  Whds.  .503;  Barnes  v.  Allen,  1  Bro.  C.  C.  by 
Belt;  and  f^lanlcy  v.  Wise,  1  Cox,  13:i ;  as  stated,  1  Mop.  Leg.  513,  514. 


III.  G.]      OF  EXECUTORY  INTERESTS.   [§7 14— 7  18.        [  434  ] 

they  are  limited,  where   they  die  before   the  contingency 
happens  on  which  sucli  interests  are  to  vest. 

744  2.  Those  executory  interests  which  arc  contin-  2.  Untrans- 
gent  sim])ly  on  account  of  the  person,  are  of  neces-  missible. 

sity  untransniissible  executory  interests:  because,  if  there 
should  be  no  person  answering  the  given  description,  of 
course  no  interest  ever  attaches  in  any  one.  And  if  there 
should  be  such  a  person,  the  interest  limited  to  him  becomes 
a  vested  interest  in  him;  so  that,  on  his  death,  it  is  trans- 
mitted to  his  representative,  not  as  an  executory  interest, 
which  it  has  ceased  to  be,  but  as  a  vested  interest. 

745  3.  Those  executory  interests  which  are  execu-  3.  Trans- 
tory  both  on  account  of  the  person  and   also   by  missiblc  in 

reason  of  being  made  to  depend  on  some  other  contingency  some  events 
which  does  not  concern  the   person,  are  transmissible  in  only.     ^ 
some   events   only.     For,  if  there   should   be  any   person 
answering  the  given  description,  and  yet  the  other  contin- 
gency does  not  happen  during  their  lifetime;  the  interests        [  435  ] 
having  attached  in  a  person  existing  and  ascertained,  and 
yet  still  remaining  executory  on  account  of  the  suspense  of 
the  other  contingency,  are,  in  such  case,  and  not  otherwise, 
transmissible  as  executory  interests.     But, 

746  II.  Looking  to  the  capacity  of  transmission,  as  H.  Division 
it  exists  at  tlie  death  of  the  persons  to  whom  ex-  of  executory 

ecutory  interests  are  limited,  such  interests  must  of  course  at  interestswitii 
that  moment  be  either,  1.  Transmissible.     2.   Untransmis-  I'f^'erence  to 
sible.     Thus,  "'.•'  ^aP'^f-l^y 

747  1.  ''Where  the  executory  interest  was  not  in  the  f''  '•'ansmi«- 
first  instance  contingent  on  account  of  the  per-  ^|'^"  ^^'^  '?° 

son,(Z»)  or  where  it  ceases  to  be  contingent  on  account  of   p  , 

the  person;  the  interest  is  transmissible,  though  of  course,  ^       entitled 

in  the  latter  case,  unless  it  continues  executory  on  account  ti^^reto 

of  some   other  contingency  on  which   it  depends,  it  is  then  .    ,p 

transmissible  as  a  vested    and  not    as   an    executory    in-    '•    •,', 

•'  missible. 

terest. 

748  2.  Of  cotu'se,  if  there  never  happens  to  be  a  2.  Untrans- 
person  answering  the  given  description,  "^  whether  missible. 

he  is  directly  or  indirectly  required  to  be  living  at  a  certain 
time,(c)  or  whatever  else  the  qualification  directly  or  indi- 
rectly may  be,  the  executory  interest  never  attaches  in  any 
one,  and  therefore  it  can  never  be  transmitted,  but  fails  alto- 
gether. 


(b)  Wcod^s  Case,  1  Rep.  99a,  as  stated,  Fearne,  364.  Pinbin-y  v.  Elkin,  I 
P.  \V.  563;  King  v.  Withers,  Cus.  temp.  Talb.  117  ;  aurncl  v.  Wood,  8  ^'in. 
p.  112,  ca.  38;  Chauncy  v.  (iraydon,2  Atk.  616;  Peck  v.  Parrot,  1  Vos. 
.Sen.  236  ;  and  Goodright  v.  Searle,  2  Wils.  29  ;  as  stated,  Fearne,  556 — 561. 

(o)  Moorhouse  v.  Wainhovse,  1  Black.  Rop.  63^,  as  stated,  Feanie,  365. 


[  436  ]        HI.  7.]  AN  ORIGINAL  VIEW         [§749—753. 


CHAPTER  THE  SEVENTH. 

OF    THE    ALIENATION    OF    EXECUTORY    INTERESTS, 

I.  By  assign-  I.  =  Executory  interests,  in  persons  in  being  and  749 
nient  in          ascertained,  are  assignable  in  equity,  for  valuable 

equity.  consideration;  and  they  are  assignable,  even  for  good  con- 

sideration, except  as  against  bond  fide  creditors.(rt) 
''  And  it  would  also  seem  that  executory  interests  750 

in  favour  of  persons  who  do  not  yet  answer  a  given 
description,  can  be  assigned  in  equity,  before  such  persons 

See  §71.  answer  such  description. (Z>)  For,  Mhere  are  cases  where 
even  a  mere  hope  or  expectancy  has  been  assigned  in 
equity. (c)  When  it  is  said  that  executory  interests  are  as- 
signable in  equity,  "^it  is  meant,  that  an  assignment  of  them 
is  treated  by  a  Court  of  Equity  as  a  contract  or  agreement  of 
which  it  will  decree  a  specific  performance. (^) 

II.  By  re-  H-  ''Executory  interests  in  real  estate  are  re-  751 
lease.             leasible  to  the  terre-tenant  or  owner  of  the  land, 

but  not  to  a  stranger.(e) 
III  By  de-         m-  ''Executory  interests,  even  before  the  sta-  752 

vise  before     tute  1  Vict.  c.  26,  might  be  disposed  of  by  the  will 
the  Stat.  1      of  any  person  to  whose  representative  the  property  would 
[  437  ]        have  passed,  had  he  died  immediately  before  the  making  of 
Vict.  c.  26.    the  will.(/) 

By  devise  And,  Ijy  that  statute,  (s.  3)  it  is  enacted,  that  "  it  753 

under  slat,     shall  be  lawful  for  every  person  to  devise,  iDequeath 
1  Vict.  c.  26,  or  dispose  of,  by  his  will  executed,  &c.,  all  real  and  personal 
s.  3.  estate  which  he  shall  be  entitled  to,  either  at  law  or  in  equity, 

at  the  time  of  his  death,  and  which  if  not  so  devised,  be- 
queathed, or  disposed  of,  would  devolve  upon  the  heir  at 
law,  or  customary  heir  of  him,  or  if  he  became  entitled  by 
descent,  of  his  ancestor,  or  upon  his  executor  or  administra- 
tor; and  that  the  power  hereby  given  shall  extend  to  ...  . 
all  contingent,  executory,  or  other  future  interests  in  any  real 

(a)  Sec  Fearne,  549;  and  Wright  v.  Wright,  1  Ves.  Sen.  409,  as  stated, 
Fearne,  550. 

(b)  See  Fearne,  549;  and  Higden  v.  Williamson,  3  P.  W.  132,  as  stated, 
Fearne,  549.     But  see  Pope  v.  Whitcombe,  3  Russ.  124. 

(c)  Beckley  v.  Newland,  2  P.  VV.  182,  187 ;  and  Hobson  v.  Trevor,  2  P.  VV. 
191;  as  cited,  Fearne,  550 — 1. 

(d)  See  Fearne,  551, 

(e)  2  Pres.  Abstr.  284. 

(/)  3Ioor  et  Ux.  v.  Hawkins,  cited  1  H.  Blac.  Rep.  Com.  PI.  33,  34,  as  stated, 
Fearne,  369.     And  see  Fearne.  371. 


III.  7.]     OF  EXECUTORY  INTERESTS.  [§751— 75G*.        [  4  37  ] 

or  personal  estate,  whether  the  testator  may  or  may  not  be 
asceiiaiiied  as  the  person  or  one  of  the  persons  in  whom  the 
same  may  respectively  become  vested,  and  whether  he  may 
be  entitled  thereto  nn'der  the  nistrnmont  by  which  the  same 
respectively  were  created  or  nnder  any  disposition  thereof 
by  deed  or  will." 

754  IV^  sExecntory   interests  may   be   bound    by  IV.  By  os- 
estoppel,  even  thonsh  merely  created  by  an  inden-  toppel  and 

ture  ;(,^)  but  ''they  cannot  be" transferred  by  deed.    Nor,  in-  conveyance, 
deed,  can  an  executory  interest,  whilst  it  continues  such,  be 
directly,  though  it  may  be  indirectly,  transferred  by  a  fine  or 
recovery. (/i) 

755  If  a  fine  was  levied  of  an  executory  interest,  or 

of  a  mere  expectancy  of  an  heir  apparent,  it  ope-  See  §  71. 
rated  at  first  by  estoppel  only :  it  did  not  actually  transfer 
the  interest  or  expectancy :  nor  had  it  any  other  present 
effect  than  that  of  indirectly  binding  the  interest  or  expect- 
ancy, so  as  to  preserve  it  for  the  cognizee  by  estopping  or 
preventing  the  cognizor  and  those  claiming  under  him  from 
contradicting  what  he  had  done,  by  any  attempt  to  dispose 
of  or  affect  it  in  any  other  way.  But,  as  soon  as  the  inter- 
est or  expectancy  became  a  vested  interest  in  the  cognizor,  [  438  ] 
the  fine  operated  as  a  conveyance  to  the  cognizee,  in  the 
same  manner  as  it  would  have  operated  in  the  first  instance, 
if  the  interest  had  been  a  vested  interest,  and  therefore 
capable  of  being  transferred.  And  thus  the  estoppel  vir- 
tually and  finally  amounted  to,  though  it  was  not,  in  the 
first  instance,  an  actual  transfer  of  the  executory  interest  or 

expectancy. 
75G  '  And  so  an  executory  interest  might  be  indi- 

rectly transferred  by  a  common  recovery  wherein 
the  person  entitled  to  such  executory  interest  came  in  as 

vouchee. (z) 
756*  A  testator  devised  an  estate  to  his  wife,  for  life  ;  Doe  d. 

remainder  to  all  and  every  the  children  of  R.  E.  Brum  v. 
and  M.  P.  who  should  be  living  at  the  time  of  his  wife's  3Iartijn,S 
death.    Two  of  these  children  levied  a  fine  sur  con.  de  droit  Bfi^  ^"^  Cres. 
come  ceo  &c.,  of  their  shares,  during  the  life  of  the   wife.  ^^7. 
Bayley,  J.,  in  delivering  the  judgment  of  the  Court,  said, 
"  That  a  fine  by  a  contingent  remainder-man  passes  nothing, 
but  leaves  the  right  as  it  found  it :  that  it  is  therefore  no  bar 
when  the  contingency  happens,  in  the  mouth  of  a  stranger 
to  that  fine,  against  a  claim  in  the  name  of  such  remainder- 
man;  that  it  operates  by  estoppel,  and  by  estoppel  only; 
and  that  parties  or  privies  may  avail  themselves  of  that 
estoppel,  but  parties  and  privies  only."     A  stranger  cannot. 


("■)  4  Jarm.  Conv.  121. 

(/j)  2  Pres.  Abstr.  118  ;  2  Prea.  Shep.  T.  238  ;  Fearnc,  3G5— 0,  oo\—2. 

(i)  Fearnc,  366, 


[  438  ]        III.  8.]  AN  ORIGINAL  VIEW         [§756a,  757. 

because  lie  is  not  estopped  liimself,  and  estoppel  must  be 

reciprocal.   (8  B.  &  C.  521—527.) 

Doe  d.  In  another  case,  testator  devised  lands  to  his  wife,  for  life  ; 

Christmasy.  remainder  lo  all  the  children  of  his  brother  that  should  be 

Oliver,  10     living  at  her  decease.     His  brother  left  one  daughter,  who 

Bar.  &  Cres.  niarried,  and  afterwards,  with  her  husband,  levied  a  fine 

187,  190.       come  ceo  in  the  lifetime  of  the  testator's  widow.     Bayley, 

See  also         J.,  delivered  the  judgment  of  the  Court ;  and,  after  advert- 

Weale  v.       j^^^  ^^  ^[^^  ^^^^  ^^-  jj^^  ^   Brune  v.  Martyn,  said,  that,  in 

1     "l^?  that  case,  "  the  operation  of  the  fine  by  estoppel  was  suffi- 

sM  d  '  ^^     ^'^"^  ^°'"  ^^^^  purpose  of  that  decision  :  whether  it  operated 

Feani'e  365  ^Y  estoppel  only,  or  whether  it  had  a  further  operation,  was 

'        '  quite  immaterial  in  that  case  :"  but  that,  in  the  principal 

case,  it  was  necessary  to  investigate  that  point ;  and  that  the 

[  439  ]        Court  was  of  opinion,  that  the  fine,  in  that  case,  "had  a 

double  operation ;  that  it  bound  the  conusors  by  estoppel  or 

conclusion,  so  long  as  the  contingency  continued ;  but  that 

when  the  contingency  happened,  the  estate  which  devolved 

upon  the  testator's  daughter  fed  the  estoppel ;   the  estate 

created  by  the  fine  by  way  of  estoppel,  ceased  to  be  an 

estate  by  estoppel  only,  and  became  an  interest,  and  gave 

the  party  claiming  by  virtue  of  the  fine,  and  those  having 

right  under  him,  exactly  what  he  would  have  had,  had  the 

contingency  happened  before  the  fine  was  levied." 


i;  440  ]  CHAPTER  THE  EIGHTH. 

OF    THE    SUPPORT     OF    CONTINGENT    REMAINDERS. 

Contineent     "A    contingent    remainder  for  years    does   not         756a 

remainder      require  a  preceding  freehold  to  support  it;(r/)  for, 

for  years        though  it  is  a  remainder,  in  a  lax  sense,  as  regards  the  pos- 

ncedsno  pre- session,  it  is  not  a  remainder,  strictly  so  called,  as  regards 

ceding  h-GQ-    the  seisin,  property,  or  ownership.     (See  §  46 — 7,  50,  58, 

hold.  159.) 

But  a  con-         ^  A  contingent  remainder  of  the  measure  of  free-  757 

tingent  free-  hold,  unless  the  legal  estate  is  in  trustees,  must  be 

hold  remain-  supported  by  a  previous  vested  freehold  estate  \{b)  that  is, 

der  must  be   it  must  be  originally  preceded  by  a  vested  interest,  of  the 

supported  by  measure  of  freehold,  which  is  ca})able,  in  its  original  limita- 

a  preceding    tion,  of  enduring  till  the  vesting  of  the  remainder ;  otherwise 

freehold.        jj  jg  void  ab  initio:  and  one  such  previous  estate  of  freehold 


(a)  Fearne,  285. 

(b)  Fearne,  281,284.  Goodrighf  v.  Cornish,!  Salk.  226;  and  Scalierwood 
V.  Edge,  1  Salk.  229  ;  as  stated,  Fearne,  282.  Davies  v.  Speed,  as  stated, 
Fearne,  284. 


III.  S.]      OF  EXECUTORY  INTERESTS.  [§758—762.        [  4 10  ] 

must  actually  endure  until  that  period;  otherwise  tlie  re- 
niaiuder  will  suhse(|ucntly  tail. 

In  elucidation  of  this  proposition,  let  us  consider  sepa- 
rately each  of  the  rules  enihodied  therein.  T    . 

758  I.  A   contuigent  reinauidcr  ot   the   measure  of  ^^  ,  • 
freehold  must  be  originally  preceded  by  a  vested  j^^j.  (,f  ^ij^ 

interest  of  the  measure  of  freehold;  otherwise  it   will  be  ^^,03^,,^^  ^p 
void  ah  initio.  freehold 

must  be  originally  preceded  by  a  vested  freehold. 

759  A  freehold  interest,  whether  vested  or  contin-  A  freehold 
gent,  unprcceded  by  any  other  interest,  or  by  any  interest  not 

other  than   a  contingent  or  a  chattel    interest,   cannot    be  so  preceded 
termed  a  freehold  remainder,  as  regards  the  seisin,  property,  cannot  be  a 
or  ownership,  any  more  than  the  portion  first  severed  or  remainder, 
taken  from  any  corpiis,  can  be  termed  a  remainder  or  rem- 
nant thereof. 
7(iO  Thus,  1.  Where  a  vested  interest  of  the  mea-        [  441   ] 

sure  of  freehold  is  limited  after  a  term  for  years;  1.  A  vested 
ahhough  the  limitation  is  good,  yet  the  interest  so  limited  is  freehold  in- 
not  an  interest  in  remainder,  but  a  present  interest,  so  far  as  tcrcst  after  a 
regards  the  seisin,  property,  or  ownership,  subject  only,  as  t'^rm  for 
regards  the  possession,  to  a  previous  chattel  interest.     (See  §  years,  is  not 
159,  111 e,  4G— 7,  50,  58,  245—257.)  ^^  remauider. 

761  2.  And  where  a  contingent  interest  of  the  mea-  2.  A  contin- 

sure  of  freehold   is  limited  by  deed  at  common  J?"^"^  ^^'^'^hold 
law,  to  take  effect  as  a  remainder  after  a  chattel  interest ;  as  '"^^''c-'t  linii- 
*"  where  lands  are  granted  to  Jl.  for  21  years,  with  remainder  ^^^  ^^^^^.  '^ 
to  a  person  unborn  ;  the  limitation  is  void  :fc)  because,  of  ^  '^'^^  iniisv- 

^'  psfifr*o  111 

course,  it  is  no  more  a  rcmamder,  as  regards  the  seisin,  than  ,        " 

',  .    .         .     /-.  .  <.     '  =.  .J  J  mon  law,  is 

a  vested  mterest  alter  a  term  lor  years,  is  a  remainder;  and      . 

the  interest,  being  contingent,  cannot  take  effect  as  a  present  ^^inder  and 

interest;  so  that  it  necessarily  fixils.  is  void  ' 

7G2  For,  it  is  a  rule,  that  the  freehold  shall  never  be  g^^  s  gg 

in  abeyance ;  and  as  the  contingent  freehold  re- 
mainder  cannot  take  effect  as  a  present  interest,  the  freehold 
must  reside,  as  a  present  interest,  in  some  other  person  than 
the  contingent  remainder  man;  and,  whether  it  resides  in 
the  grantor  or  his  heir  at  law,  or  in  the  heir  at  law  of  the 
devisor,  or  in  an  ulterior  vested  remainder-man,  as  a  present 
interest,  the  contingent  interest  limited  after  the  chattel, 
necessarily  fails;  because,  if  it  were  allowed  to  take  effect 
on  the  happening  of  the  event  on  which  its  vesting  is  sus- 
pended, it  could  only  take  effect  in  defeasance  or  suspension 
of  the  present  interest  so  residing  as  aforesaid  in  the  other 
person,  instead  of  taking  effect  after  a  term,  unpreceded  by, 
and  not  affecting,  any  other  freehold  interest,  it  could  not 
lake  effect,  therefore,  in  the  way  intended ;  and  the  other 

(c)  Burton's  Compendium,  pi,  33. 


[  441  ]        III.  8.]  AN  ORIGINAL  VIEW[§762a      —765. 

mode  of  taking  effect,  in  defeasance  or  suspension  of  another 
Sce§  148-9,  interest,  was  a  mode  which  was  foreign  to  the  simphcily  of 
149a.  the  common  law. 

3  A  contin-       ^-  ^"^  though  a  contingent  interest  of  freehold         762a 
oent  freehold  <iui'^^io"  limited  after  a  chattel   interest  may  be 
f  443  1        S°^^'  *^  limited  by  way  of  use  or  devise  ;  yet  it  is  not  good 
interest  limi- as  a  remainder,  but  as  a  springing  interest.     (See  §  159, 
ted  after  a       117— 127a.) 
chattel  interest,  by  way  of  use  or  devise,  is  good,  but  not  as  a  remainder. 

4.  A  freehold      4.  Again  ;  where  a  freehold  interest,  limited  by  763 
interest  lim-   way  of  use  or  devise,  is  only  preceded  by  a  con- 

ited  by  way  tingent  interest  of  freehold  duration,  though  it  may  be  good, 
of  use  or  de-  ^nd  though  it  may  be  termed  a  remainder  in  relation  to  such 
vise  after  a  preceding  contingent  interest,  and  it  has  the  capacity  of  be- 
conlingcnt  coming  a  remainder,  in  every  respect ;  yet,  so  long  as  it  is 
mtercs^tonly,  q,^]^  preceded  by  a  contingent  interest,  it  cannot  be  a  remain- 
js  good,  but  ^gj,  jj^  jj^g  g^j.j^j  ggj^g^  ^j-  ji^g  ^gj.^^ .  jf  cannot  be  a  remaining 
not  as  a  re-  p^j-^JQ^j  ^^  ^jj^  seisin,  property,  or  ownership,  any  more  than 
maniuer.  .^  .^  ^^^^,^  ^^^^  preceded  by  any  freehold  interest  at  all.  (See 
§  46—7,  50,  159,  677.) 

5.  A  freehold      5.  Where  a  freehold  interest,  at  common  law,  is         763a 
interest  lim-  only  preceded  by  a  contingent  interest  of  the  mea- 

ited  after  a     sure  of  freehold,  it  is  void.     For,  as  already  observed,  it  is  a 
contingent      rule  that  the  freehold  shall  never  be  in  abeyance;  and  as 
intercstonly,  the  ulterior  freehold  interest  was  intended  to  be  a  future 
at  common    interest,  the  present  freehold  must  reside  in  some  person 
law,  is  not     other  than  the  person  entitled  to  the  ulterior  freehold  interest, 
a  remainder,  ^^^  ^^  course  it  must  reside  in  some  other  individual  than 
and  is  void.    ^^^  person  entitled  to  the  preceding  contingent  interest ;  and 
hence  it  must  reside  in  the  grantor  or  his  heir  at  law;  and 
consequently  the  ulterior  freehold  interest  fails,  for  the  same 
Sec  §  702.     reasons  as  those  above  assigned  for  the  failure  of  a  con- 
tingent freehold  interest  limited  by  deed  at  common  law 
after  a  term. 
H.  A  contin-      II.  A  contingent  remainder  is  void  uh  initio,  764 

gent  remain-  not  only  unless  it  is  preceded  by  a  vested  freehold 
der  must  interest  of  some  kind,  but  also  unless  it  is  preceded  by  a 
continue  freehold  interest  which  may,  by  its  original  limitation,  on- 
to bepreced-  dure  until  the  vesting  of  the  remainder  :  and  it  will  snbse- 
ed  by  a  vest- quently  become  void,  unless  one  such  freehold  interest 
ed  freehold     eventually  endures  until  that  period. 

capable  of  j^  {here  is  any  intervening  undisposed  of  portion  765 

enduring  till  ^^  seisin,  property,  or  ownership,  between  the  de- 
the  vesting  termination  of  a  prior  interest,  and  the  commencement,  that 
r  idVl"  ^^'  ^^^  vesting  in  right,  of  a  subsequent  contingent  interest, 
•-  J  -'  such  subsequent  interest  cannot  take  effect  as  a  remainder; 
maindcr.  because,  when  the  period  of  the  determination  of  the  prior 
interest  arrives,  the  subsequent  contingent  interest  fails,  for 


Iir.  9.  i.]  OF  EXECUTORY  INTERESTS.  L§"05a— 7G(i.        [  4 13  ] 

the  same  reasons  as  those  already  given  for  tlie  faiUne  of  a  Sec  §  762. 
contingent  interest  which  is  hmited  to  take  effect  as  a  remain- 
der after  a  chattel,  and  is  nnpreceded,  in  its  original  limita- 
tion, by  any  freeliold. 
765a  ''  If  the  remainder  is  all  along  preceded  by  such  But  not  ne- 

a  ])receding  estate,  it  is  sufiicicnt,  though  the  first  ccssarily  by 
preceding  estate  may  have  become  forfeited  or  determined  the  first  pre- 
before  the  vesting  of  the  remainder.(^/)  ceding  estate. 

765b  HI.  'It  is  not  necessary  that  there  should  be  a  m  p^oj  ^g. 

preceding  estate  which  is  vested  in  possession  :  it  cessary  that 
is  sufficient  if  there  is  such  a  preceding  estate  of  freehold  the  prcccd- 
duration  as  is  vested  in  interest,  so  lliat  it  would  under  the  jng  estate 
old  law  confer,  at  the  time  when  the  remainder  should  vest,  should  be 
a  present  right  of  entry,  (e)  vested  in 

possession. — See  §  79-81. 

765c  IV.  '■"Where  the  legal  estate  is  devised  to  and  IV.  A  pre- 

vcsted  in  trustees  in  trust,  there  is  no  need  of  any  ceding  estate 
preceding  particular  estate  of  freehold  to  support  contingent  is  not  neces- 
liniitations:  for,  the  legal  estate  in  the  general  trustees  will  ^a^'X'  '^^^^'^^ 
be  sufficient  for  that  purpose.(/)  cstatcTs  in 

trustees. 

See  §  783. 


CHAPTER  THE  NINTH.  [  444  ] 

OK    THE    DESTRUCTION    OF    CONTINGENT    REMAINDERS    AND 
OTHER    EXECUTORY    INTERESTS. 


SECTION   THE    FIRST. 

The  Destruction  of  Contingent  Remainders  created  oat 

of  a  Lesal  Fee  Simple  in  Freehold  Hereditaments. 
-^  o  -I  ^  contingent 

766  It  will  appear,  from  the  foregoing  chapter,  that  j-cmaindcr  is 

whenever  the  legal  estate  is  not  in  trustees,  and  destroyed  by 

there  is,  in  the  first  instance,  or  there  happens  to  be,  event-  the  dciermi- 

ually,  but  one  preceding  estate  of  freehold  duration,  and  nation  of  the 

that  estate  is  determined,  so  as  not  even  to  exist  as  a  right  sole  subsist- 


{(1)  Corbet  v.  Tichhorn,  2  Salk.  576,  and  Linck  v.  Cook,  2  Salk.  469,  as 
stated,  Fearne,  283.  But  see  !Sir  Thomas  Palmer's  Case,  Moor,  815,  as  stated, 
Fearne,  282. 

(e)  See  Fearne,  286—301,  and  Butler's  Notes  thereto. 

(/)  Fearne,  303;  ami  Chupman  v.  lUissct,  and  Hopkins  v.  Hopkins,  (as. 
temp.  Talb.  145,  44,  as  stated  Fearne,  304 — 5. 
Vol.  H.— 45 


[  444  ]        III.  9.  i.]  AN  ORIGINAL  VIEW  [§7G7— 773. 

ing  prcccd-    of  entry,  before  the  event  happens  on  which  a  contingent 
ing  estate,      remainder  is  to  vest;  such  remainder  is  necessarily  destroyed, 
before  such    » And  it  will  never  afterwards  arise,  even  though  the  par- 
remainder      ticular  estate  be  subsequently  restored. (a) 
vests.  Now,  tlie  preceding  estate  may  be  determined,  767 

This  deter-     so  as  to  cause  the  destruction  of  a  contingent  re- 
mination        mainder  limited  thereon,  whether  at  common  law  or  other- 
niay  happen  yyi^Q^  ji^  various  ways.     Thus, 

in  various  j_  "Wj^ej-e  (he  sole  subsisting   preceding   estate  768 

ways.  liappens  to  expire,  according  to  its  original  limita- 

I.  By  regular  jJQ,)^  before   the  contingency  occurs,  upon  which  the  re- 
expiration.     niainder  is  to  take  effect :  as,  where  an  estate  is  given  to  ^^. 

for  life,  remainder  to  the  right  heirs  of  J.  S.,  and  ./?.  dies  in 
the  lifetime  of  J.  S.,  and  consequently  before  there  can  be 

See  §  38.3.     any  heir  of  J.  S. 

[  445  ]  II.  ^  Where  the  tenant  of  the  preceding  estate  769 

II.  By  dis-      was  disseised,  and  his  right  of  entry  tolled. (6) 

seisin  and  III.   Where    the    preceding   legal    estate  is  de-            770 
tolling  of  the  stroyed,  and  a  new  estate  created,  by  the  tenant  of 

right  of  such  preceding  estate,  by  the  operation  of  a  tortious  assur- 

entry.  ance,  as  a  ^  feoffment,  fine,(c)  or  ••  recovery.(af) 

III.  By  the  x\nd,  as  regards  the  operation  of  the  assurance,           771 
destructive  it  is  the  same  whether  the  tenant  of  such  preceding 
operation  of  estate  is  beneficially  entitled,  or  is  only  a  trustee.           772 
a  feofTment,  Before  the  statute  of  uses,  indeed, "-'"  if  feoffees  in 

fine,  or  re-  trust  had  aliened  without  consideration  or  with  notice,  the 
covery,  by  lands  would  have  been  subject  to  the  old  uses ;  but  that  was 
the  tenant  of  i^ggjj^^gg  the  feoffees  themselves,  before  that  statute,  stood 
the  prcced-  ggj^g^j  ^f  jhe  legal  fee  simple ;  and  of  course  their  alienee 
^"p  ff ',^^u'  •  came  in,  either  of  the  same  estate,  or  of  an  estate 
u  le  ler   eis  ^^^.^^^   out  of  that.     But  since   the  statute  it  is  773 

^^♦•,1^.1  ^I    otherwise  :  for  now  tlie  feoffees  are  seised  of  no 
entilieci,  or  '  ,  ,       .  n     i-     -.    i  ■  .     ^i 

jjQj  greater  estate  than  what  is  actually  limited  in  use  to  them, 

the  seisin  being  executed  to  the  uses  by  the  statute :  from 

whence  it  follows,  that  when  the  feoffees  do  not  take  the 

use  in  fee,  if  they  make  a  feoffment,  their  feoffees  come  in, 

neither  of,  nor  under,  the  estate  of  which  they  were  seised, 

but  of  a  new  estate  acquired  by  disseisin. "(e) 

(a)  Fearne,  315,  349.  An  alteration  merely  in  the  quality,  and  not  in  the 
quantity,  of  the  particular  estate,  will  not  destroy  a  contingent  remainder. 
Fearne,  338,  and  cases  there  cited. 

(b)  See  Fearne,  286,  note  (e).  '    ' 

(c)  Archer's  Case,  1  Rep.  66;  and  Co.  Lift.  290  b.  (1)  IV.  &"V.4. 

(d)  Denn  d.  Webh  v.  Puckei/,  5  D.  &  E.  299,  stated  §  570.  Driver  d.  Ed- 
gar V.  Edgar,  Covvp.  Rep,  379;  and  Fountain  v.  Gooch;  as  stated  and  com- 
mented on,  Fearne,  426 — 428. 

(e)  Fearne,  325.  And  Chudlei^lCs  Case,  I  Co.  Rep.  120,  as  stated,  Fearne, 
324. 


III.  9.  i.]   OF  EXECUTORY  INTERESTS.  [§77  1—779.        [  4 15  ] 

774  The  student  must  be  careful  to  observe,  that  it  It  is  the  de- 
is  the  destruction  of  the  particular  estate  by  a  tor-  struction,not 
tious  assurance  which  destroys  contingent  remain-  tlie  transfer, 

775  ders,  and  not  the  mere  transfer  thereof  by  an  inno-  of  the  par- 
cent  assurance.    For,  '"if  a  tenant  for  life  separately  ^'cular  es- 

bargains  and  sells,  or  if  he  leased  and  released,  to  a  stranger  'j^^*^'  ^^'i'<^h 
in  fee;  these  are  innocent  conveyances,  which  pass  no  more  ^^•'^'^oys  a 
than  what  lawfully  may  pass,  and  caimot  efl'ect  the  estate        I  J 

for  life  in  any  other  way,  llian  by  transferring  it  to  another  '^''"'"l^?^"'^ 

person.(/)        '  remainder. 

77G  IV.  s  VVhere  the  tenant  for  life  does  some  act  IV.  By  for- 

which  amounts  to  a  forfeiture  ;  such  as  the  accept-  fciture. 
ance  of  a  fine  come  ceo,  &c.,  from  a  stranger,  and  there  is  no 
right  of  entry  in  any  other  person,  except  a  subsequent  vested 
remainder-man,  and  such  remainder-man  takes  advantage 
of  the  forfeiture ;   the  intermediate  contingent  remainders 

are  destroyed. ("•) 
777  V.  Where  the  particular  estate  merges  in  the  V.  By  mer- 

inheritance  in  fee  or  in  tail,  either  by  the  act  of  the  ger. 
particular  tenant,  or  by  the  descent  of  the  inheritance  on  the 
particular  tenant  subsequently  to  the  taking  efi'cct  of  the 

particular  estate. 
77S  I.  This  merger  may  be  occasioned  by  the  act  of  1.  By  act  of 

the  particular  tenant,  in  various  ways —  tcnantfor  life 

(1)  '^  If  the  tenant  for  life  accepts  the  reversion  in  fee  before  ^^  i"  t'^''- 
the  vesting  of  the  contingent  remainders.(A) 

(2)  If  the  tenant  for  life  ' surrenders, (/)  ''bargains  and 
sells,  or  leased  and  released, (A-)  to  the  immediate  vested  re- 
mainder-man in  tail  or  in  fee,  or  to  the  reversioner. 

(3)  'If  the  tenant  for  life  and  the  immediate  remainder- 
man or  reversioner  join  in  a  conveyance. (/) 

(4)  ■"  If  a  tenant  for  life,  having  also  the  immediate  vested 
remainder  or  reversion,  bargains  and  sells,  or  leased  and 

released,  (w) 
779  2.  "The  merger  of  the  particular  estate,  and  the  2.  By  de- 

destruction  of  contingent  remainders  thereby,  may  scent  of  the 
be  occasioned  by  the  descent  of  the  inheritance  on  tlie  par-  inheritance 
licular  tenant  subsequently  to  the  taking  effect  of  the  par-        [  447  ] 
ticular  estate.  on  the  par- 

In  this  case,  the  descent  of  the  inheritance  may  be  allowed  ticular  ten- 
its  tuU  operation  of  merger,  without  rendering  the  limitations  ant  subsc- 
originally  and  totally  abortive ;   for,  the   particular  estate  q'lcntly  to 

(/)  Compare  Fearnc,  322,  with  Butler's  note  (/"),  322. 

\g)  See  Fearnc,  323,  and  Lloyd  v.  Brooking,  1  Vent.  188,  as  there  stated. 

(/<)  Piirefoy  v.  Rogers,  2  Saund.  380,  as  stated,  Fearnc,  317. 

(?)  Thompson  v.  Leach,  2  Vent.  198,  as  stated,  Fearne,  318. 

(A)  Fearne,  321,  note  (/'). 

(Z)  Fearne,  321,  note  (/),  and  340. 

(m)  Foarne,  321,  note  (/). 


[  447  ]        III.  9.  i.]  AN  ORIGINAL  VIEW        [§7S0— 782. 

tlie  taking  having  once  taken  eflect  before  the  descent  of  the  inherit- 
etiectoftlie  ance  happened,  there  is  no  more  reason  that  it  should  be 
particular  exempt  from  the  accidental  operation  of  merger  in  this  case, 
estate.  than  in  any  other  case  where  the  inheritance  becomes  united 

with  the  particular  estate. (n) 

3.  But  not  by  3.  But,  "where  a  testator  Hmits  a  particular  780 
the  descent    estate  to  the  heir,  with  a  contingent  remainder  over 

of  the  in-  without  any  ulterior  vested  remainder  carrying  the  fee,  so 
heritanceon  jj^^j  ^j^g  inheritance  descends  to  the  iieir  till  the  contingency 
the  particu-  i^rippg,-|s^  r^t  tj^e  very  time  when  his  particular  estate  first 
iar  tenant  at  j^^gg  gffegt .  the  inheritance  is  not  executed  in  him  perfectly, 
ni'^Tr'^o-  ^^  ^^  ^^  merge  the  particular  estate,  but  only  sub  modo,  so 
fT  f  il  "^  ^^  ^^  leave  an  opening  for  the  interposition  of  the  remainder, 
particular'''    when  the  contingency  happens. 

estate  ¥oy,  in  this  case,  as  the  descent  takes  place  at  the  very 

time  when  the  particular  estate  takes  effect,  namely,  at  the 
death  of  the  testator;  if  merger  were  to  take  place,  the  par- 
ticular estate  would  arise,  and  be  destroyed,  in  one  and  the 
same  instant,  and  would  be  destroyed  by  a  descent  permitted 
by  the  very  same  will  by  which  it  was  created. (o) 

4.  Nor  by  4,  v  And,  in  like  manner,  where,  by  the  same  7S0a 
the  union  of  conveyance  a  particular  estate  is  first  limited  to  a 

the  particu-  pgj-gon,  with  a  contingent  remainder  over  to  another,  with 
larestateand  ^^^^j^  ^  reversion  or  remainder  to  the  first  person,  as  would, 
the  inherit-  -^^  -^^  ^^^^^  nature,  drown  the  particular  estate  first  given  him  ; 
ance  ""  ^i  ^j^^  -^^^^  limitation  is  construed  as  executed  sub  modo  only, 
[-'®.^g"Y^'  in  order  that  the  arrangement  of  the  settlor  may  be  carried 
ance  bv  ^'^^^  effect,  instead  of  being  defeated  in  its  birth. (/;) 
which,  and  at  the  time  when,  both  were  created. 

Trust  estates      The  liability  of  contingent  remainders  to  destruc-  78 1 

to  preserve    tion  in  these  ways,  occasioned  the  introduction  of 

contingent      trust  estates  to  preserve  them. ((7) 

remainders.        ^nd  '"  it  has  been  decided,  that  if  a  fine  deter-  783 

Mere  right     mines  the  particular  estate,  the  right  of  entry  in 

of  entry  in     the  trustees   to  preserve   contingent   remainders,  supports 

the  trustees    them,  without  an  actual  entry.(r) 

is  sufficipnt^ _____^ 

(«)  See  Fearne,  343—345  ;  and  Kent  v.  Harjiool,  T.  Jones,  76  ;  and  Hooker 
V.  Honker,  Rep.  temp.  Hard.  13;  as  stated,  Fearne,  342. 

(0)  See  Fearne's  observations,  343 — 345;  and  Plunket  v.  Holmes,  1  Lev.  11; 
Boothby  V.  Vernon,  9  Mod.  147;  and  Archer's  Case,  1  Rep.  66;  as  cited, 
Fearne,  .341,  342.  (p)  Fearne,  346. 

(q)  Fearne,  326.  Little  else  remained  to  be  done  in  regard  to  the  subject  of 
this  chapter,  than  to  express  or  arrange  the  points  in  the  corresponding  chapter 
in  Fearne,  in  a  somewhat  more  perspicuous  manner.  And  as  to  tlie  nature  of 
trust  estates  to  preserve  contingent  remainders,  and  the  jurisdiction  of  a  Court  of 
Equity  for  the  purpose  of  transposing  and  supplying  them,  and  of  punishing  the 
trustees  for  joining,  or  ordering  them  to  join,  in  destroying  contingent  remainders ; 
it  is  only  necessary  to  refer  to  Fearne,  326 — 338. 

(r)  Davies  v,  Bvsh,  M'Clcl.  &  You,  88. 


III.  9.  ii.]     OF  EXECUTORY  INTERESTS.         [§78.3.       [  418  ] 


SECTION  THE  SECOND. 

The  Destruction  of  Contim^cnt  Remainders  crcftted  out 
of  un  Equitable  Fee  Simple  Estate  in  Freehold  Here- 
ditaments^ or  an  Equitable  Subordinate  Fee  Simple  in 
Copyholds. 

783  "There  is  no  necessity  for  the  continuance  of  a  Xo  necessity 

preceding  particular  estate  of  freehold  to  preserve  for  tlie  con- 
contingent  remainders,  where  the  legal  estate  in  fee  is  vested  tinuanccofa 
in  trustees:  for,  the  legal  estate  of  the  trustees,  will  he  snffi-  particular 
cient  to  preserve  the  contingent  remainders,  notwithstanding  t;"^tai<^s  where 
the  regular  expiration  of  the  particular  estate,  before  the  ''"^  '^§^^  ^^' 
contingent  remainder  can  vest.fs)  ^^^^  '^  '" 

In  iioe  d.  Clemett  v.  Brig,i;s,  the  Lord  Chief  Justice  ob-  ^''^'^tees. 
served,  that  where  a  contingent  remainder  is  created  out  of  Observations 
a  common  fee  simple  estate,  it  must  have  a  previous  estate        [  449  ] 
of  freehold  to  support  it;  and  the  destruction  of  every  such  of  Lord  El- 
previous  estate  before  the  remainder  vests,  destroys  the  re-  lenborougli 
mainder:  but  where  the  remainder  is  created  out  of  what  ^s  to  this 
may  be  called  a  subordinate  fee  simple  estate,  as  out  of  a  po'^t. 
copyhold,  where  the  ordinary  fee  simple  is  in  the  lord  ;  or 
out  of  an  equitable  fee  simple,  where  the  ordinary  legal  fee 
simple  is  in  some  other  person  ;  the  destruction  of  the  pre- 
vious estate  will  not  aflect  the  remainder,  but  it  shall  be 
supported  by  the  ordinary  fee  simple  estate. (^) 

And  where  a  testator  devised  freehold  and  copyhold  sur-  Habergham 
rendered  to  the  use  of  his  will,  to  trustees  and  the  survivor  v.  Vincent, 
and  his  heirs,  in  trust  to  pay  debts  and  legacies,  &c.:  then,  2  Ves.  204. 
on  the  marriage  of  B.  N.  II.,  to  convey  to  her  and  to  her 
children  in  tail,  as  therein  mentioned,  remainder  to  such 
persons,  &c.,as  he  should,  by  any  deed  or  instrument  attest- 
ed by  two  witnesses,  appoint.  The  next  day,  by  deed  poll 
attested  by  two  witnesses,  and  reciting  the  will,  he  directed 
his  trustees,  immediately  after  the  death  of  B.  N.  H.,  and 
failure  of  her  issue,  to  convey  all  his  real  estate  to  the  chil- 
dren of  his  son  in  tail,  as  therein  mentioned  ;  then,  to  the 
right  heirs  of  the  survivor  of  his  trustees,  his  heirs  and  as- 
signs, for  ever.  No  conveyance  was  made.  B.  N.  II.  and 
the  son  died  without  issue,  leaving  one  trustee  surviving. 
Lord  Loughborough,  C,  and  Wilson,  J.  and  J3uller,  J.  held, 
that  the  deed  was  to  be  considered  as  a  codicil  sufficient  to 
pass  the  copyholds ;  and  that  the  last  limitation  was  a  con- 
tingent equitable  remainder  to  the  heir  of  the  surviving 

(s)  See  Chapman  v.  Blissett,  Cas.  temp.  Talbot,  14o;  and  Hopkins  v.  Hop- 
kins, lb.,  as  stated,  Fcarne,  304,  as  to  freehold. 

(/)  Lord  P^llenboroutrh,  C.  .1.,  in  Roe  d.  Clemett  v.  Briggs,  IG  Last,  413,  in 
accordance  with  Lord  Kenvon's  observations  in  Doe  v.  Martin,  4  D.  »k  E.  64. 


[  449  ]        III.  9.  iii.] 


AN  ORIGINAL  VIEW         [§784—787. 


[  -150  ] 


Cestui  que 
trust  for  life 
cannot  de- 
stroy a  con- 
tingent re- 
mainder ; 
But  cestui 
que  trust  in 
tail  may. 


trustee,  and  was  supported  by  the  legal  estate  which  the 
trustees  took  under  the  will.  The  Court,  however,  were 
agreed  that  if  the  remainder  had  been  of  the  legal  estate,  it 
would  have  been  void  ;  Mr.  Justice  BuUer  observing,  that 
Lane  V.  Pannel  showed  that;  (2  Ves.  233)  and  the  Lord 
Chancellor  remarking,  that  the  only  distinction  between 
freehold  and  copyhold  was,  that  the  estate  of  the  lord  will 
preserve  contingent  remainders  against  a  forfeiture.  [lb. 
209.) 

"^kcestuique  trust  for  life  cannot, by  feoffment  or  784 

other  conveyance, destroy  a  contingent  remainder; 
for,  since  he  has  not  the  legal  estate  in  him,  whatever  convey- 
ance he  may  make,  passes  only  what  he  can  lawfully  grant, 
that  is,  his  trust  estate  for  life,  and  there  is  a  right 
of  entry  residing  in  the  trustees  :{u)  though,  a  "re-  785 

covery  by  a  tenant  in  tail  of  a  trust  estate,  is  allow- 
ed to  bar  the  remainder,  because  he  is  master  of  the  estate, 
and  may  call  in  the  legal  estate  whenever  he  pleases. (a?) 


SECTION  THE  THIRD. 

The  Destruction  of  Contingent  Remainders  created  out  of 
a  Legal  Fee  Simple  in  Copyholds. 


I.  Where  the 
preceding 
estateexpires 
by  original 
limitation, 
the  remain- 
der is  de- 
stroyed. 


II.  But 
where  the 


I.  >  It  would  seem,  that  in  the  case  of  copyholds,  7SG 
where  the  preceding  estate  expires,  by  original  lim- 
itation, or  would  have  expired,  by  original  limitation,  be- 
fore the  vesting  of  a  contingent  remainder;  such  remainders 
are  destroyed:(y)  because,  although  the  ordinary  freehold 
is  in  the  lord,  and  that  is  capable,  in  itself,  of  supporting  a 
contingent  remainder,  yet,  if  such  estate  were  construed  to 
support  the  remainders,  they  would  be  enabled  to  take  ef- 
fect in  a  different  way  from  that  provided  by  their  original 
limitation  ;  whereas,  the  settlor  or  devisor  may  possibly 
have  intended  that  they  should  fail,  if  they  could  not  take 
effect  in  the  way  contemplated  by  the  limitation. 

II.  But  where  the  preceding  estate  is  determined  787 
by  the  act  of  the  tenant,  as  ■'  by  surrender  to  the 


(w)  Fearne,  321. 

[x)  Fearne,  321  ;  and  Doe  A.  Cadogan  \.Ewart,l  Ad.  &  EI.  636;  stated  § 
568. 

(y)  Sec  Fearne,  320.  And  see  Ilahergham  v.  Vincent,  2  Ves.  233,  stated  § 
783. 


III.  9.  iv.]  OF  EXECUTORY  INTERESTS.  [§78S,  788a.        [  451  ] 

]orA(z)   or  "to  another    person, («)  or  ''acceptance  of   the  preceding 
rever.son,(A)  or  "^  forfeit ure,(c)  and  would  not    liave  expired,  estate  is  dc- 
by  original   liniitation,  before  the  vesting  of  the  contingent  lermined  by 
remainder,  sncli   rcn)aindcr  is  supported    by  the   ordinary  ^•^■t '^f^'ic 
freehold  in  the  lord:  because,  tiie  settlor  or  devisor  cannot  t*-'"^'"',  the 
be  supposed  to  have  contemplated  their  destruction  by  the  remainder  is 
act  of  the  tenant  of  the  preceding  estate,  or,  at  all  events,  "*^^  °'^' 
must  have  intended  that  they  should  be  supported  and  take  ^"°>'^  * 

effect  notwithstanding  any  such  act. 
7S8  III.  ''  If,  however,  the  freehold  of  inheritance  in  III.  Rcniain- 

the  lord  of  a  manor,  becomes  united  with  a  par-  der  dcstroy- 
ticular   estate  of  copyliold,  by  a  deed  of  enfranchiseujcnt,  cd  byeni'ran- 
the  contingent  remainders  expectant  upon  such  particular  diiscmcnt. 
estate,  arc  thereby  destroyed. (r?) 


SECTION  THE   FOURTH. 

The  Desb'uction  of  Contingent  Reynainders  created  out 
of  Estates  jnir  aider  vie. 

7SSa  "  Where  estates  pur  outer  vie  are  limited  to 

one  in  tail,  [or  rather,  for  an  estate  in  the  nature 
of  an  estate  tail,]  he  may,  by  any  conveyance  proper  for 
passing  estates  of  freehold,  bar  his  own  issue  and  all  re- 
mainders over,  and  make  a  complete  disposition  of  the 
whole  cstate."(e)  "  For  though  the  original  lease  be  only 
for  three  lives,  yet  it  being  the  interest  of  both  landlord  and 
tenant  that  the  leases  should  be  renewed,  and  it  being  the  [  452  ] 
doctrine  of  the  Court  of  Chancery,  that  all  such  new  leases 
are  subject  to  the  old  trusts,  the  estate  might  by  this 
means  continue  for  ever,  without  the  possibility  of  being 
barred."(/) 

"  But  an  estate  pur  auter  vie  may  be  limited  to  one  for 
life,  so  as  to  confine  his  interest  and  power  of  disposition  to 
his  own  life  estate  only."(^) 

{z)  Paivsey  v.  Lowdall,  2  Roll.  Abr.  794,  pi.  6,  as  stated,  Fearne,  319. 

(a)  Lane.  v.  Panncl,  1  Roll.  Rep.  23S,  317,  438,  as  cited,  Fearne,  319. 

(b)  Mildmaij  v.  Uungerford,  2  Vorn.  243,  as  stated,  Fearne,  320. 

(f)  Fcainc,  320.    See  also  Ilabergham  v.  Vincent,  2  Vcs.  209;  stated  §  783. 

[d)  Roe  d.  Chmetl  v.  Briggs,  IGEast,  40G. 

(e)  Fearne,  499.  See  also,  lb.  496  ;  and  Mogg  v.  Mogg,  1  Meriv.  654, 
stated  §  705.  Duke  of  Grafton  v.  IFanmer,  1  P.  \V.  260,  m  the  note;  Baler 
V.  Baylcy,  2  Vern.  225  ;  IVorton  v.  Frecker,  1  Atk.  52  1  ;  and  Saltern  v.  Sal' 
tern,  2  Atk.  370  ;  as  stated,  Fearne,  497 — 499. 

(/)  Reporter's  observations  on  Duke  of  Grafton  v.  llanmer,  3  P.  W.  220, 
in  note,  as  cited,  Fearne,  497. 

(g)  Fearne,  499. 


[  452  ]        III.  9.  v.l      AN  ORIGINAL  VIEW,  &c.         [§789,  790. 


SECTION  THE  FIFTH. 

The  Destruction  of  Executory  Interests  not  limited  by 
ivay  of  Remainder. 

By  recovery.      These  *•  executory  interests,  if  engrafted  on  an  789 

estate  tail,  might  be  destroyed  by  the  tenant  in  tail, 
by  means  of  a  common  recovery.  (A) 
Not  bv  mere      Cut    'such   interests    cannot  be    prevented   or  790 

alteration  in  destroyed   by    any  alteration    whatsoever   in  the 
estate.  estate  out  of  which  or  after  which  they  are  liniited.(«) 

{h)  Fearne,  424 ;  and  Page  v.  Haytoard,  2  Salk.  570,  as  there  stated, 
(i)  Fearne.  418,  421;    and  Lee  v.  Lcc,  Moor,  268,  as  stated,  Fearne,  422. 


INDEX. 


ABEYANCE. 

The  lesal  ownershin  or  freehold  :md  inheritance  cunnul  be  in  abcy- 

ancc         .  .  •  •  •  >  ^"^ 

Consequences  of  tliis         ...  •     §60 — 62 

ABSOLUTE  INTEREST, 

JDe^nition  oi  a.  c/efcasibk  inicYost  .  ■  §'^7 

AN  absolute  or  indefeasible  interest  .  §  9S 

THE  absolute  interest         .  .  .     §  100 

a  limited  interest         .  •  •  §  1.^^^ 

Distinction  between   the  absoUite  interest,  and   an   absohite   in- 
terest        .  .  .  •  •  .^  102—3 
Construing  an  interest  to  be  absolute  rather  than  defeasible. 

The  Rule  suggested         .  .  •  .  §  223 

Reasons  thereof;  viz. 

Odiousness  of  conditions         .  .  .         §224 

Leaning  in  favour  of  vesting         .  ;  §225 

Leaning  in  favour  of  free  enjoyment  and  ahenation  of  pro- 
perty        .  .  .  .  .       §226 
Application  of  the  Rule. 

See  Legacy,  §  227— 234.-Or,  §  235— 240.— Portions,  §  241-4. 
ACCUMULATION, 

Before  the  statute         ...  •  §  J3Sa 

Or/^m  of  the  statute       ....  §  73Sb 

Restrictions  of  the  statute. 

Enactments  thereof  .  .  •  §  "^^Sc 

The  statute  appUcs  even  to  accumulations  in  favour  o'l persons 

taking  vested  interests       .  .  .  §  73Sd 

It  applies  even  where  accumulation  is  not  directed         §  73Se 

Accumulations  are  void  on/y  as  to  the  eventual  excess  §  73SI 

Accumulation    void  after   21    years  from    testator's  death, 

though  it  has  not  lasted  that  time       .  .  §  73Sg 

Whether  accumulation  may  be  made  during  the  minority  of 

a  person  not  in  esse  at  grantor's  or  testator's  death    §  738h 

Exceptions  in  the  saving  clause  of  the  statute. 

/rorf/*  of  the  act  .  .  •  •        §  738i 

Meaning  of  the  word  interest  in  the  second  exception     §  738j 
An  annuitu  is  not  an   interest  within  the  second  exception 

§  73Sk 
Vol.   II.— 16 


151  INDEX. 

ACCUMULATION— co;i^mwe^. 

Destinaiion  of  the  income  released  from  accumulation. 

/lo/vA"  of  the  act         ....      §  741a 
Effect  thereof        .  .  .  .  §  741b 

AViiere  the  trust  for  accumulation  is  engrafted  on  a  vested  in- 
terest, and  the  income  goes  to  the  person  having  such  vested 
i}itercst     .  .  .  .  .     §  741c 

Where  it  goes  to  the  residuary  devisee  or  legatee  §  74 Id 

Where  it  goes  to  the  heir  or  next  of  kin     .  .         §  741e 

ADVx\NCES, 

Vcstiuix  indicated  by  power  to  make  advances         .         .        §  340 
AFTER, 

Denoting  a  condition  precedent  .  .  .     §  285 — 6 

Referring  only  to  the  possession  or  enjoyment  .  §  346 

AGE.     See  Vested— Or 
ALIENATION  in  general, 

Favoured  by  the  law  ...  §  226, 421 

ALIENATION  of  Executory  Interests, 

By  assignment  in  equity  .  .  •         §  '^49 — 750 

By  release  .  .  .  .  .  §  751 

By  devise  before  stat.  1  Vict.  c.  60  .        •         .  §  752 

under  stat.  1  Vict.  c.  60,  s.  3         .  .  §  753 

By  estoppel  and  conveyance  .  .  .         §  754 — 6 

ALTERNATIVE  LIMITATIONS, 

Defined         .  .  .  .  .  §  128 

Ditferent  names  given  to  them  .  .  •        §  1^9 

Requisites  to  .  .  .  ,  §  130 

Omission  of  the  condition  on  which  the  jwior  limitation  is  to  take 
effect  .  .  .  .  .  §  131 

Two  kinds,  as  regards  their  form  .  .  .      §  132 

Definition  of  an  alternative  limitation 

o(  \.\\c,  proper  ox  eocplicit  form  .  .  §  133 

ot^  ihe  improper  ov  elliptical  iorm  .  .  §  134 

Contingency  sometimes  implied  by  the  word  "  or^^  §  135,  283 

in  the  context  .  §  136 

*/Jny  number  of  them  may  be  limited  in  succession       .  §  136a 

Distinguished  irom  remai?iders  generaMy  .  .  §161 

co?2^i7/on«/ limitations  generally  .  §157 

Vv^'ords  apparently  amounting  to  a  mere  rt//('m«//t'e  limitation,  but 

in  reality  constituting  a  remainder;  and  vice  versa. 

A  general  rule  suggested  .  .  §  638 — 645 

More  specific  rules. 

Devise  to  a  person,  and  his  issue,  or  his  sons,  daughters, 
or  children,  with  a  limitation  over  on  his  death  without 
issue,  &c.  .  .  •  •  §  646 

Where  the  ancestor  or  his  issue  take  an  estate  tail,  or 
the  issue  take  a  life  estate  in  remainder,  and  such 
estate  is  vested  and  absolutely  limited,  §  647 

Where  such  estate  is  contingent,  or  hypothctically  limi- 
ted .  .  .  •  §  648 
Where  such  estate  is  in  fee               .                 .        §  649 


INDEX.  455 

ALTERNATIVE  LIMITATIONS— cow/mwer/. 

May  take  cfl'fct  nolwitli.standiiig   non-fnlfilmcnt  of  the  cnndilinn 
'  '  §  091—5 

See  Death. 

Conditional  Limitations  .  •  •         §  ^•''''^* — '' 

Limitations  .  .         §  GG8— G72a,  078— GS2,  G8.5— fi 

Remoteness     .  .  •  •  •  §  "^27 

Issue. 
AND.     See  Or. 
ANNUITY, 

Is  not  an  interest  within  the  second  exception  in  the  statute  of  ac- 
cunuilations  .  .  •  ■  •        §  '''38k 

APPOINTMENT, 

DefinUinii  of  apower  o^  :\.\^\)on\ime.\\\,  .  .  §72 

Effect  of  apower  of  appointment, 

over  re«/ estate  .  .  .  §^3G9a 

over  personal  estate  .  .  •      §  '"^^     ■* 

Limitations  in  default  of, 

defined  .  .  .  .    _  §  1^5 

distinguished  from  certain  cases  of  void  conditional  limita- 
tions .  .  •  •  ^      §  [J^7 
See  Remoteness                 ...               §  728 — 7.35 
AS  SOON  AS, 

Denoting  a  condition  precedent  .  .         §  285 — 6 

Not  denoting  a  condition  precedent,  InU  referring  only  lo  the  pos- 
session or  enjoyment  .  .  •  §  •'^^^ 
ASPECT, 

Contingency  with  a  double  aspect  .  .  §129 

See  Alternative  Limitations. 
ASSIGNMENT.     See  Alienation. 

AT,  , 

Denoting  a  condition  precedent  .                 .                §  2Sj — 0 
AUGMENTATIVE  LIMITATIONS, 

Definition                        .                 •  •                 •             §  137 

Illustrations             .                  .  .                  •           §  138—140 

Distinguished  from  Conditional  Limitations  .                 §  158 

Remainders  .                •         §  1^3 
See  LivERV  of  Seisin. 

BARGAIN  AND  SALE, 

When  a  contingent  remainder  is  destroyed  by  it  •         §  ""^ 

BEQUESTS.     See  Legacy— Personal  Estate— Vested. 
CESSER, 

Clauses  of  cesser  and  acceleration  defined  .  •         §  22 

See  Condition. 
Limitation. 

Conditional  Limitations. 
Augmentative  Limitations. 
DiMiNUENT  Limitations. 


456  INDEX. 

CESTUI  QUE  TRUST, 

for  life  cannot  destroy  a  contingent  remainder  .  §  784 

but  cestui  que  trust  in  tail  may  .  .  §  785 

CHARACTER, 

^Jee  Vested  .  .  .  §210— 214,  &c. 

Remoteness  ,  .  .  §  721 

CHARGES  ON  REAL  ESTATE, 

Definilion  of  .  .  .  .  §  73 

Bequests  thereof  to  ^^.,  if,  or  in  case,  or  provided,  &c.,  do  not  vest 
immediately  ....  §  292 

Do  not  vest  immediately,  wlien  there  is  a  reference  to  a  future 
age,  time,  or  event,  though  such  age,  &c.,  is  disannexedfrom  tlie 
gift  itself  ....  §321—7 

Gift  of  intermediate  income  will  not  vest  charges  on  real  es- 
tate ....  §  336—9 

Vest  before  day  of  payment,  if  directed  .  §  339 

CHATTELS, 

Freeholds  limited  after  chattel  interests,       §  119 — 124a,  245 — 257 
See  Personal  Estate. 
Quasi  Remainder. 
Vested  ....  §  245—257 

CHILD, 

A  word  of  limitation  ...  §  537 

CHILDREN.     See  Legacy — Portions — Remoteness. 
CIVIL  LAW, 

Doctrine  of  the  .  §287—9,294-5,312—318,330 

CLASS,  bequests  to  a.     See  Legacy — Remoteness. 
COLLATERAL  J^imitations.     See  Limitations. 
COMMON  LAW, 

Freehold  could  not  be  limited,  at  common  law,  to  commence  in 
futuro,  except  by  way  of  remainder  .  .  §  60 

CONDITION, 
Division 

in  the  widest  sense  of  the  term     . 

of  conditions  properly  so  called 

of  genera/ conditions  .... 

of  conditions  siibsecjucni 

of  mixed  condiiiions  .... 

Properly  so  called  .... 

Kxpress  ...... 

Implied       ...... 

Direct  ...... 

Indirect      ...... 

General  ...... 

Special         ...... 

Subsequent. 

Dcjinition  ...... 

Two  forms  of  .... 

Definition  of  a  condition  subsequent  of  the  concise  or  im^- 
plied  form         .  .  .  .         §  16 


§2,3 

§4 

§11 

§  15 

§20 

§4 

§5 

§6 

§7 

§8 

§9,11 

§10 

§12 

§  15 

INDEX.  457 

CONDITION— con/mnfr/. 

Defiuilion  of  a  conJilion  subsequent  of  iho  iinconcise  or  ex- 
]) licit  form         .  .  •  •  §  ^7 

Illustrated    .  .  •  •  §  1«,  li> 

Precedent. 

Definition  .  .  •  •  §  l*^ 

Same  coiitingcncy  may  be  both  a  special  limitation  and  a 

condition  'precedent  .  •  •  §  '13 

Where  a  condition  precedent  annexed  to  a  preceding  interest 

extends  also  tu  a  suhsefjuent  interest  .  §  222a 

Where  a  condition  which  under  ordinary  circumstances  would 

clearly  be  held  to  be  a  condition  precedent,  is  construed  a 

condition  subsequent  .  •  •  §  110 

Wliere  construed  according  to  the  letter,  not  tlie  spirit  §  220 

Mixed. 

Definition  of  .  .  •  •  §  !•* 

Two  kinds  of       .  .  .  .  §  20 

Definition  of  a  mixed  condition  of  the  destructive  and 
creative  kind    .  •  •  .          §  20 

of  the  destructive  and  accelerative  kind     §  22 
Sometimes  termed  conditions  precedent,  and  sometimes  con- 
ditions subsequent    .  .  •  •         §  20 
Distinguished  {xom  CQ.x{:x\n  o{\\exs       .                 .  §21 
Where  a  prior  interest  should  be  determinable,  and  the  sub- 
sequent interest  be  limited  to  arise,  on  the  fulfilment  of  a 
mixed  condition              .                 •                 •         §  279?  2S0 
In  deed                ....  §  5 
In  law        .                 .                 .                 .                  •                §  6,  26 
"  On  Condition.^ ^ 

One  of  the  three  technical  expressions  introducing  a 

condition  subsequent  .  §  16,  IS 

Introducing  a  special  or  collateral  limitation  of  the 

irregular  kind  .  .  §  39 

Odioiisness  of    .  .  .  •  §  225 

Ertect  of  the  non-fulfilment  of  conditions  precedent  and  mixed 

where  the  condition  is  a  direct  condition,  and  the  limitation  is 

not  a  mere  alternative 

—  as  regards  the  interest  to  be  created  .        §  68S 

—  and  as  regards  the  interest  to  be  defeated  §  6S9 

—  where  the  event  happens  under  other  circumstances 
than  those  specified  .  .  §  690 

—  where  the  limitation  over  is  on  the  not  leaving  issue 
generally,  and  not  merely  on  the  not  leaving  issue  who 
can  take  under  the  prior  limitation  .        §  691 

where  the  existence,  at  a  particular  time,  of  the  objects  of  a 
conditional  limitation,  is  regarded  as  indirectly  forming  a 
part  of  the  condition  on  which  such  conditional  limitation 
is  to  take  eficct  .  .  •  §  692— 3 

where  the  limitation  is  a  mere  alternative  limitation,  §  694 — 5 


45S  INDEX. 

CONDITION— ro/2//;u/e^/. 
Invalidity  of  conditions, 

JVhat  conditions  are  void  .  .  .        §  G96 

IMorally  wrong  or  civilly  unlawful. 
Repugnant  to  a  rule  of  law. 
Contrariant  in  themselves. 
Uncertain  or  ambiguous. 
Restraining  from  suffering  a  recovery  or  levying  a  fine 

within  the  stat.  4  II.  VII.  and  32  H.  VIII.  ' 
Impossible. 
Too  remotely  possible. 

What  is  too  remote  a  possibility  .  §  G97 — 8 

Effect  of  the  Invalidity  of 
Conditions 

precedent  .  .  .  •        §  ^^^ 

subsequent  ...  §  700 

mixed  .  .  .  •      §  "OOa 

special  or  collateral  limitations     .  .  §701 

See  Hypothetical  Limitations. 
Conditional  Limitations. 
Springing  Interests. 
Augmentative  Limitations. 
DiMiNUENT  Limitations. 
Alternative  Limitations. 
Contingent  Remainders. 
Reversion. 
Vested. 
Portions. 
CONDITIONAL  LIMITATIONS, 

Ge?ienc  sense  of  the  term  .  .  .        §  148 

Use  of  the  term  in  this  sense  is  not  incorrect,  but  yet  is  -pro- 
ductive of  miscJiief  .  .  .  §  148 
Specif  c  sense  of  the  terTn  .  .  .  .  §  149 
Of  an  irregular  form  ...  §  284 
Must  be  really  limited  in  defeasance  of  a  prior  interest  §  149* 
Can  only  be  by  way  oiusc  or  devise  .  .  §  149a 
Term  shifting  and  springing  uses,  and  executory  devises  §  150 
7?ert5o;z  o/^Ae  ^erm  "  conditional  limitation,"  .  §151 
Not  expedient  to  extend  the  term  "  springing  interests^''  to  inter- 
ests under  conditional  limitations  .  .  §  152 
Conditional  limitations  in  general  distinguished 

—  from  conditions  subsequent  .  .  §153 

—  from  clauses  of  cesser  and  acceleration  .        §  153 

—  from  special  or  collateral  limitations  in  one  respect      §  153 

—  from    special  or    collateral    limitations,    in    another    re- 
spect .  .  .  .  §  154 

—  from  remainders  and  limitations  of  springing  interests 

§  155— G 

—  from  alternative  limitations  .  .  §  157 

—  and  from  augmentative  and  diminuent  limitations       §  158 


INDEX.  459 

CONDITIONAL  LIMITATIONS— c^/i/mi/cr/. 

Certain  cas's  orcondilioiml  limitations  di^lin,i;uished 

—  I'lorn  curtain  cases  of  vested  rcmaind'r.s,  and  the  first, 
second,  and  third  sorts  of  contingent  remainders,  and  the 
seventh  kind  o(  springing  interests;  and  vice  versd. 

Wliere  a  subscqacnl  interest  depends  on  the  determina- 
tion of  the  prior  interest 

—  by  force  of  a  regular,  or  irregular,  special  or  col- 
lateral li7nitation,  and  such  subsequent  interest  is 
a  reniaindcr,  or  a  hniitation  of  a  springing  iriter- 
est  of  the  seventh  kind  .  §  2G3 — t) 

—  by  force  of  a  mixed  condition,  and  sucli  subse- 
quent interest  is  not  a  remainder;  nor  is  it  good  at 
the  common  law  in  any  other  way;  but  it  may  be 
good,  if  by  way  of  use  or  devise,  as  an  interest 
under  a  conditional  limitation         .  §270 — 3 

Where  a  subsequent  interest  depends  on  a  condition  pre- 
cedent unconnected  with  the  determination  oj  the 
prior  interest,  and  is  a  contingent  remainder,  ca.pah\ii 
of  afterwards  becoming  converted  into  a  vested  re- 
mainder .  .  •       .    .     .  ^  ^'''^ — ^ 

—  from  certain  cases  of  mere  alternative  hraitations;  and 
vice  versd. 

Introductory  observations  .  .  §  650 

Where  the  prior  interest  in  fee  is  not  vested  and  abso- 
lutely limited,  and  the  subsequent  limitation  is  an 
alternative        ...  §  651 — 4 

Where  the  prior  interest  is  vested  and  absolutely  limited, 
and  the  subsequent  limitation  is  a  conditional  limita- 
tion .  .  •  .     §  655 

—  from  limitations  in  default  of  appointment  §  667 
Effect  of  the  non-existence  of  the  objects  of  .  §  692 
See  Condition — Death — Implication — Limitations. 

CONTINGENCY, 

With  a  double  aspect  .  •  •  §  ^^^ 

Gifts  with  a  double  contingency,  or  two  alternative   contmgen- 
cies  .  •  .  •  •         V  ^^^ 

See  Condition — Alternative  Limitations. 
CONTINGENT  INTERESTS,  generally. 

Definition  of  an  interest  which  is  contingent  on  accoant  of  the 
pe7'Son  .  .  •  •  .§91 

Sec  Executory  Interests. 
CONTINGENT  REMAINDERS, 

Three  modes  of  drfning  vested  and  contingent  remainders    §  170 
Vested  and  contingent  remainders  defined. 

— loithout  reference  to  the  right  of  possession  or  enjoyment, 

or  the  possession  or  enjoyment  itself  .  §  171 — 2 

— with   reference  to   the  right   of  possession   or  enjoyment 

§  173 — 1 


460  INDEX. 

CONTINGENT  REM AlNDERS—co;i//;meflf. 

—  icilh    reference    to    the    possession   or   enjoyment  itself 

§  175—6;  and  see  §  258 
Distinctions  between  vested  and  contingeiit  remainders. 

Distinction  as  regards  the  mode  of  their  creation,  forming  a 
true  criterion  ....         §177,258 
Consequential   distinctions    pertaining   to   their   nature    and 
qualities  ...  •         §  178 — 9 

It  is  not  tlic  indefeasibleness  of  the  right  of  possession 
or  enjoyment,  nor  the  absohUe  certainty  of  the  posess- 
sion  or  enjoyment  itself,  which  distinguishes  a  vested 
remainder  .  .  §  180 

But  still  a  vested  remainder  is  only  uncertain  on  account  of 
the  relative  uncertainty  of  its  own  duration,     §  ISl — 2 
A  remainder  may  be  limited  on  a  contingency,  and  yet  be 
vested  •  .  .  §   183 

The  several  kinds  of  contingent  remainders  defined  §  184 — 7 

Remarks  on  a  devise  to  two,  and  the  survivor,  and  the  heirs  of 
such  survivor  .  .  .  •  §  lS7a 

All  the  kinds  of  contingent  remainders  strictly  depend  on  a  contin- 
gency, irrespective  of  their  own  duration  >  §  188 — 190 
They  may  be  all  combined  in  the  same  limitation  §  191 
Remainders  after  estates  tail  .  .  §  192 — 4 
JNTay  become  a  vested  xevc\^\ndcv  .  .  .  §  195 
Exceptions  from  the  fii^st  class. 

First  exception,  formed  by  the  usual  limitation  to  trustees  for 

preserving  contingent  remainders.     Part  II.  Chap.  5. 
Second  exception.     Part  II.  Chap.  6. 

Where  a  remainder  limited  on  a  contingent  determination 

of  the  preceding  estate,  may  take  effect  on  the  certain 

expiration  thereof         .  .  §  259 

As  in  the  case  of  a  devise  to  testator^s  ivife  for  life, 

if  she   shall  so  long   continue  his  widow  ;   and   in 

case  she  marry,  to  A,  in  fee  .  §  260 

Where  a  remainder  can  only  take  effect  on  a  contingent 

determination  of  the  preceding  estate         .  §  261 

Exceptions  from  i\\G  fourth  class. 

First  exception,  in  the  case  of  an  ultimate  limitation  to  the 

right  heirs  of  the  grantor.     Part  II.  Chap.  11. 
Second  exception,  created  by  the  Rule  in  Shelley\s  Case,  where 
real  property  is  limited  to  a  person,  with  remainder  to  his 
heirs  general  or  special.     Part  II.  Chap.  12. 
See  Rule  in  Shelley's  Case. 
Third  exception,  where  real  estate  is  devised  to  a  person  and 
to  his  issue ;  and  the  word  issue  is  construed  to  be  a  word 
of  limitation,  by  analogy  to  the  Rule  in  Shelley^s  case,  and 
under  the  cy  jrrcs  doctrine.     Part  II.  Chap.  13. 
See  Issue. 
Fourth  exception,  under  the  cy  pres  doctrine,  where   real 


IiNDKX.  461 

CONTINGENT  KEMAINDERS— to;i////?<cf/. 

estate  is   devised   to  the  children    of  an   unborn  person. 
Part  II.  Clmp.  14. 
Fifth  exception,  under  the  cy  pres  doctrine,  ni  the  case  of  an 
intended  perpetual  succession   of  life   estates.       Part  II. 
Chap.  15. 
Sixth  exception,  under  the  cy  pres  doctrine,  where  the  word 
son,  duui^hter,  or  child,   in  a  devise  of  an  estate  in  re- 
mainder, is  construed  to  be  a  word  of  Uniitation.     Part  II. 
Chap.  16. 
Distinguished  from  other  hmitations  uot  by  tvay  of  remainder. 
See  Remainders — Vested  Interests  §  245 — 257,  2S1,  &c. 

Alternative   Limitations     .  •  §638 — 649 

Springing  Interests. 
Augmentative  Limitations. 
Diminuent  Limitations. 
Hypothetical  Limitations. 

Conditional  Limitations  .  •      §  263 — 275 

Reversion  .  •  •  §  ^'^^     ^^^ 

Heir  ....      §383-388 

Entail        ....  §  564,  &C. 

See  also  Alienation. 
Destruction. 
Support. 

Time  for  Vesting. 
Transmission. 
COPYHOLD.     See  Destruction. 
CY  PRES.     See  Contingent  Remainders. 

DEATH, 

Period  to  which  death,  when  mentioned  as  ifitivcre  a  contingent 
event,  is  to  be  referred. 

Where  personal  estate  is  Umited  over  "  in  case,^^  or  "  in  the 
event  o/"  death,  and  the  death  is  held  to  be  a  death 

—  in  the  testator's  hfetime  .  §  656—7 

—  in  a  prior  taker's  hfetime         .  .  §  658 

—  at  some  other  period       .  .  §  659 — 660 
Where  the  gift  over  is  introduced  by  other  ivords  of  contin- 
gency                .                  .                  .                  •  §  661 

Where  the  gift  over  is  not  simply  in  the  event  of  death 

§662—3 

Same  construction  seems  applicable  to  real  estate  as  to  per- 
sonal      .  .  .  •  .        §  664 
Exception                      .                 .                 •  §  ^^^ 
Decision  against  the  application  of  this  construction  to 
real  estate.     But  perhaps  that  decision  is  questionable 

§  666 

DEFEASANCE, 

Detined  .  .  .  •  .  §  23 

DEFEASIBLE  interest  defined        .  •  •  §  ^7 

Vol.  II.— 47 


462  INDEX. 

DESCENT.     See  Transmission. 
DESCRIPTION,     ^^e  Vested. 

DESTRUCTION  of  contingent  rcmainde7's  created  out  of  a 
Legal  fee  simple  in  Freehold  hereditaments. 

A  contingent  remainder  is  destroyed  by  the  determmation  of  the 
sole  subsisting  preceding  estate  before  such  remainder  vests 

§766 

But  not  by  an  alteration  in  the  quality  §  766,  note  (a). 

A  remainder  xix^y  fail  as  to  one  part  only        .  .      §  703a 

A  remainder  wwxy  fail  as  to  some  persons  only         .  §  703b 

The  preceding  estate  may  determine^  so  as  to  cause  the  destruction 

of  a  contingent  remainder,  in  various  ways  .        §  767 

By  regular  expiration        ...  §  768 

By  disseisin  and  tolling  of  the  right  of  entry  .         §  769 

By  the  destructive  operation  oidi  feoffment,  fine,  or  recovery, 

by  the  tenant  of  the  preceding  estate  .  §  770 

Whether  he  is  beneficially  entitled  or  not  §  771 — 3 

It  is  the   destruction,  not  the  transfer  of  the  particular 

estate,  which  destroys  a  contingent  remainder  §  774 — 5 

^^  forfeiture  .  .  .  •        §  '^'^^ 

By  merger  .  .  .  •  §  "777 

By  act  of  the  tenant  for  life  or  in  tail  .        §  778 

—  by  acceptance  of  the  reversion. 

—  by  surrender,  bargain  and  sale,  or  lease  and  re- 
lease to  the  remainder-man  or  reversioner. 

—  by  bargain  and  sale,  or  lease  and  release,  where 
the  tenant  for  life  has  also  the  immediate  remain- 
der or  reversion. 

—  by  joining  the  remainder-man  or  reversioner  in  a 
conveyance. 

By  descent  of  the  inheritance  on  the  particular  tenant, 
subsequently  to  the  taking  effect  of  the  particular  estate 

§779 
But  not  by  the  descent  of  the  inheritance  on  the  particu- 
lar tenant  at  the  moment  of  the  taking  effect  of  the 
particular  estate        ...  §  780 

Nor  by  the  union  of  the  particular  estate  and  the  inheri- 
tance under  a  conveyance  .  .      §  7S0a 
Equitable  fee  simple  in  Freehold  or  Copyhold  hereditaments. 
No  necessity  for  the  continuance  of  a  particular  estate,  where 
the  legal  estate  is  in  trustees                 .                 .  §  783 
Observations  of  Lord  Ellenborougli       .                 .        §  783 
Cestui  que  trust  for  life  cannot  destroy  a  contingent  remainder 

§784 

But  cestui  que  trust  in  tail  may  .  •  §  ^^^ 

Le^al  fee  simple  in  Copyholds, 

Where  the  preceding  estate  expires  by  original  limitation,  the 

remainder  is  destroyed  .  .  •        §  786 

Where  the  preceding  estate  is  determined  by  act  of  the  tenant, 

the  remainder  is  not  destroyed  .  .  §  787 


INDEX.  463 

DESTRUCTION  of  other  executory  interests. 

Remainder  destroyed  by  enfranchisement  .            §  788 

Estates /n/r  rt?//e?' z7>                   .                  •  •                  §  788a 

Trust  estates  to  preserve  contingent  remainders  .           §  781 

Mere  right  of  entry  in  the  trustees  is  sullicient  .                    §  782 

13y  recovery                      .                 •                 •  •          §  789 

Not  by  mere  alteration  in  estate               .  •                   §  790 

DETERMINABLE  quality,  what  is  meant  by  a  .            §  34 

DEVISE, 

Division  into  immediate  and  execntory          .  .           §  m 
Executory  devise, 

Ge7ier/c  sense  of  the  term         .                 .  •         §llla 
Specif  c  and  usual  sense                 .  ■                  §llla 
The  general  term  "  executory  devise"  is  commonly  used  in- 
stead of  specif  c  terms         .                 .  •         § mb 
This  has  generally  arisen  from  the  imperfect  state  of  the 
science,  and  has  been  very  prejudicial     ,  §  lUc 
See  Alienation. 
DIGNITIES, 

Not  previously  subsisting,  might  be  limited  in  futuro,  even  at 

common  law         .                 ."               .  §  111  a,  note  (e) 
DIMINUENT  LIMITATIONS, 

Defined         .                 .                 .                 •  •               §  147 

Distinguished  from  conditional  limitations  .                 .      §  158 

remainders                     .  .               §  164 
DIRECTORY  TRUST.     See  Executory  Trust. 
DIVISION, 

Necessity  for  division  of  estates  into  classes  .         §29 

DURING,  denoting  a  special  or  collateral  limitation    .  §  35,  41 

ENLARGEMENT  of  estates  on  condition  .  .  §137 

ENTAIL,  _ 

Whether   raised   by   implication  from   a  Inmtation   over  ot  real 
estate 

—  on  an  indefinite  failure  of  issue  of  a  prior  faker 

—  where  there  is  no  express  devise  to  his  issue,  and  yet 
he  is  held  to  take  an  estate  tail  .  §  564 

The  principle  of  this  construction  §  5G4a 

Two  co-existing,  yet  inconsistent  intents;  namely, 
the  primary  or  paramount  intent,  and  the  *e- 
condary  or  7ninor  intent,  which  is  sacrificed  to 
the  former  .  .  .  §  564b 

How  the  primary  or  paramount  intent  is  manifested 

^  56  Ic 

This  construction  is  adopted,  whetlier  the  prior  limi- 
tation is  expressly  in  fee  or  inile finite,  or  lor  life 

§  56  Id— 8 

—  where    there    is   an    express  devise   to   his  issue,  co 
nomine 


464  INDEX. 

ENT  Alh—coniinued. 

—  and  the  ancestor  takes  an  estate  tall  in  posses- 
sion ...  §  569 

It  is  immaterial,  in  the  supposed  case,  whellier 

the   expression  for  the  devise  over  is  issue 

indefinitely,  or  ^^  such  issue'' 

—  and  (upon  principle)  the  ancestor  would  take 

an  estate  tail  in  remainder  .  §  571 

Absurdity  of  contrary  doctrine  .         §  572 

Observations  on  the  fact  that  there  are  decisions 

in  support  of  the  contrary  doctrine  §  573 

—  and  an  estate  tail  cannot  he  raised  in  remainder 

§  574—5 
—  where  there  is  an  express  devise  to  his  sons,  daughters, 
or  children,  eo  nomine 

—  and  (upon  principle)  the  ancestor  would  take  an 
estate  tail  iti  remainder         .  .  §  576 

JRules  deduced  by  Mr.  Jarman,  from  the  cases 

§  577 
Observations  on  these  rules       .  §  578 — 9 

Suggested  result  of  the  preceding  cases,  and 

remarks  •  •  •  §  580 

Observations  of  Lord  Chief  Baron  Richards,  on 

the  intention  of  testators  .  §  580 

—  and  there  can  be   no  estate  tail  in  remainder 

§  581—2 

—  and  the  ancestor  will  take  an  estate  tail  in  pos- 
session .  .  •  •  §  583 

—  on  a  failure  oi  children  only  of  the  prior  taker,  or  on  b.  fail- 
ure of  issue  within  a  certain  time        .  .  §  584 

—  on  an  indefinite  failure  of  issue  of  a  person  to  ivhom  no 
express  devise  is  made 

where  the  person  whose  failure  of  issue  is  spoken  of 

is  the  testator's  heir  apparent  or  presumptive,  and  he 

takes  an  estate  tail        ...  §  585 — 6 

This  constructiorn  not  allowed  in  Laneshorough  v. 

Fox,  but  admitted  in  other  cases         .  §  587 

where  the  person  whose  failure  of  issue  is  spoken  of  is 

not  the  testator's  heir  apparent  or  presumptive,  and 
he  does  not  take  an  estate  tail  .  §  588 — 9 

Limitations  oi  personal  estate  similar  to  limitations  which  would 
create  an  estate  tail  in  real  property 

Chattels  cannot  be  entailed  ...  §  593 

General  rule  resulting  from  this  .  .     §  593a 

See  Personal  Estate. 

ENTRY,  right  of    .  .  .  .  •  •  §  69 

See  Destruction  of  contingent  remainders  .  §  781 — 2 

ESTOPPEL, 

Executory  interests  may  be  passed  by  estoppel  and  conveyance 

§  754—756* 


INDEX.  465 

EVENT.     See  Condition— Vest. 
EXECUTED. 

See  RuLK  IN  Shelley's  Case,  §  407 — 117;  §  -191,  -195. 
p]xECUTOuv  TutrsT. 
EXECUTORY  DEVISE. 

See  Conditional  Limitations. 
Springing  Intehests. 
Quasi  Remainders. 
Devise. 
EXECUTORY  INTERESTS, 

Division  .  .  .  .  .  .  §  75 

Two  modes  of  defining  vested  and  executory  interests  §  75a 

Dejinitionoi  executory  interests  tm7A  reference  to  the  right  of  pos- 
session or  enjoyment 

0{  ^n  executory  \n{exc?.i      .  .  .  .  §84 

Of  a  certain  executory  interest  .  .  .       ^  85 

Of  a  contingent  executory  interest  .  .  §  86 

Definition  of  executory  interests  without  reference  to  the  right  of 
possession  or  enjoyment 

Of  an  executory  interest — certain  and  coiitingent  §  90 

Are  most  cerrectly  defined  without  reference  to  the  right  of  pos- 
session or  enjoyment  .  .  .  .  §  91 

Several  kinds  of      .  .  .  .  .  .       §  92 

See  Springing  Interests. 

Augmentative  Limitations. 
DiMiNUENT  Limitations. 
Conditional  Limitations. 
Alternative  Limitations. 
Remainders. 

Contingent  Remainders. 
Contingent  Interests. 
Quasi  Remainders. 
Reversion,  &c. 
EXECUTORY  TRUSTS, 

Definition        ......§  489 

Ground  of  the  distinction  between  trusts  executed  and  trusts  exe- 
cutory .....§  491,  604 — 6 

A  gift  through  the  medium  of  a  direction,  is  not  necessarily  a  trust 
executory         .....§  609 — 613 

See  Rule  in  Shielley's  Case  .  .  •       §  "^^9 — 502 

Personal  Estate  .  .  .     §  598,  601 — 637 

Issue       ......§  531 — 2 

Life  Estates. 
EXPECTANCY, 

Definition      .  .  .  .  .  .  .      §  71 

Assignable  in  equity        .....§  750 

FEE,  on  a  fee     .  .  .  .  .  .  .    §  165 

FINE.     See  Alienation — Destruction. 


466  INDEX. 

FORFEITURE, 

Contingent  remainder   destroyed  by   forfeiture  of  the   particular 
estate  ......§  776 

FREEHOLD, 

Z)(;/?/2//io/2  of  a /f.!^<7/ interest  of  freehold   .  .  .         §  65 

an  equiluble  interest  of  freehold  .  .§  67 

Cannot  be  in  abeyance       .  .  .  .  .         §  59 

Could  not  be  limited,  infuturo,  at  common  law,  except  by  way  of 
remainder,  but  may  by  way  of  use  or  devise      .  .         §  60 

See  OWNEKSHIP. 

FROM  AND  AFTER, 

Denoting  a  condition  precedent         ...  §  2S5 — 6 

Referring  only  to  the  possession  or  enjoyment   .  .  §  346 

GENERAL  TERMS        .  .  .  .  §  111c 

HEIR, 

Strict  soise  of  the  word      .  .  .  •       §  383 

Where  used  for  sons,  daughters,  or  children  .  §  387 

Where  used  for  heir  apparent  or  presumptive  .        §  388 

A  remainder  to  the  heirs  of  a  living  person  is  a  limitation  to  a  per- 
son not  in  being  (§  383),  or  not  yet  ascertained  .       §  384 
Favour  shown  to         .                  .                  .                  •        §  325, 643 
Position  of. 

Observations  of  Lord  Brougham         .  .  §  739a 

the  Judges  in  Toldervy  v.  Colt  §  643 

Hope  or  expectancy  of  the  heir  is  assignable  in  equity  §  750 

Ultimate  limitation  to  the  right  heirs  of  the  grantor  §  390 — 1 

Devise  to  testator^ s  heir  apparent  or  presumptive  after  the  death 
of  another  to  whom  no  devise  is  made  gives  to  the  former  a  re- 
mainder .  .  .  .  §  590 
h.  word  of  limitation                   .                 .                 .  §31 
Not  a  ivord  of  limitation,  but  denoting  a  special  occupant       §  32 
See  Rule  in  Shelley's  Case. 
HYPOTHETICAL  LIMITATIONS  defined        .                  •       §  114 

Introducing  an  indirect  special  or  collateral  limitation       §  35,  42 
Not  denoting  a  condition  precedent,  but  referring   only  to   the 
vesting  in  possession  or  enjoyment  .  •  §  346 

Introducing  a  condition  j^vccedent.  .  .      §  350 

See  Vested  ...  §  290—300,  351 

IMPLICATION, 

Rule  in  Shelley'' s  Case, 

applies  even  where  the  ancestor  takes  a  freehold  by  implica- 
tion, only         ....  §  463 
General  observation  on  the  aid  afforded,  in  the  application  of 
the  rule,  by  implication  from  a  limitation  over  o)i  failure 
of  issue                      .                  .                  .                  •       §  488c 


INDEX.  I'M 

IMPLICATION— CO////// ?<ff/. 

Of  an  estate  tail.  •   i      • 

Where  the  possible  interval  between  a  faihire  of  issue  niheri- 
lable  under  an  estate  tail,  and  an  indefinite  failure  of  issue, 
may  be  filled  up  by  implication  .  •         §  380 

See  Entail. 
Of  an  estate /or ///fi  .  •  •          •          §590—2 

IN  CASE.     See  Vested  .  •  §  290—300,  351 

INCOME, 

Where  a  gift  of  the  intermediate  income  is  an  indication  of  vest- 
ing.    See  Vested  .  •  •  §  328 — 339 
Accruing  before  the  vesting  of  an  executory  devise  or  bequest, 

—  where  there  is  no  disposition  of  the  intermediate  freeliold 

§739 

Observations  of  Lord  Brougham  on  the  position  of  the 

heir  at  law  .  ^      •  •  §  739a 

where  there  is  no  disposition  of  the  intermediate  income 

o{  personal  estate,  or  only  a  partial  disposition  which  is 
not  for  the  benefit  of  the  person  to  whom  the  executory 
bequest  is  made  .  •  •  .  §  ^40 
Where  the  intermediate  income  of  personal  estate  is  par- 
tially disposed  of  for  his  benefit                      .  §  740a 

—  where  there  is  a  re^/rft^crry  devise  or  bequest  .  §741 
INDEFEASIBLE  INTEREST  .  .  •  §  98 
INTENT, 

Primary  or  paramount,  and 
Secondary  or  minor  intent, 

—  in  cases  falling  within  the  rule  in  Shelley's  case  §  429—450 
in  devises  to  Vi  person  and  to  his  issue,  eo  7iotnine,  y/here 

there  is  no  devise   over   on  an  indefinite   failure  of  issue 

§  520—4 

—  in  devises  to  the  children  of  an  unborn  child        \  534^5 

—  in  the   case  of  an  intended  perpetual  succession  of  life 
estates         .  .  •  •  §  536-536b 

—  in  devises  in  remainder  to  a  son,  daughter,  or  child,  eo  no-^ 
mine,  nud  lis  a.  )io?nen  colled ivum         .  .         §  ,^-^J 

in  devises  to  a  person  and  to  his  issue  where  there  is  a  limi- 
tation over  on  an  indefinite  failure  of  issue  §  564a — c 
Observations  of  L.  C.  B.  Richards  on  the  intention  of  testators  §  580 
INTEREST, 

In  the  widest  sense  of  the  term, 

Z)<'y///j7/o/i  of  an  interest,  in  this  sense         .  .         §  44 

The  different  classes  of  such  mlercsisdefinedand  distinguished. 
Introductory  divisions,  definitions,  and  ilistiuctions. 
Rights  or  interests  either  ;je//ef/  or  imperfect. 
A  perfect  interest  described         .  •  §  45 

Three  kinds  of  interests  commensurate  with  the  du- 
ration of  real  hereditaments;  viz.  legal  owner- 
ship, equitable  ownership,  and  mere  possession. 
These  may  be  either  united  or  disunited         §  50 


4(iS  INDEX. 

INTEREST— coJitinued. 

Other  interests  which  are  not  commensurate  with 
tlie  duration  of  real  hereditaments,  and  are  always 
collateral  .  .  .  §  51 

^Qnother  division  of  interests,  in  the  widest  sense  of  the 
term,  in  lands  and  tenements  .  .         §  64 

DeJinitio7i  of  a  legal  interest  of  freehold  .  §  65 

a  legal  interest  for  a  term  of  years        §  66 
an  equitable  interest  o(  freehold  §  67 

an  equitable  interest  for  a  term  of  years,  §  68 
a  quasi  interest  .  .  §  69 

The  different  species  of  qtiasi  interests         .         .       §  69 
Mere  precarious  possessions  .  .  §  70 

Definition  of  an  expectancy  .  .  §  71 

a  ;70i^;fr  of  appointment         .  .     §  72 

a  charge  .  .  .         §  73 

a  lien  .  .  •  §  74 

Interests,  in  the  widest  sense  of  the  term,  in  personal  es- 
tate .  .  .  .  .    §  74a 
Division  of  interests  of  the  measure  oi  freehold  in  lands  and 
tenements,  and  interests  in  chattels, 

—  with  reference  to  the  existence,  &c.  of  the  seisin,  pro- 
perty, or  ownership  .  .  .  §  75 

—  with  reference  to  the  nature  of  the  contingency     §  93 

—  with  reference  to  the  capacity  of  transmission     §  742 

—  with  reference  to  the  certainty  of  duration       •     §  96 

—  with  reference  to  the  quantity  of  interest  .  §  99 
In  the  technical  generic  sense  of  the  term  .  §  Q5,  67 
In  the  technical  specific  sense         ,                  .                 .             §  84 

See  Executory  Interests,  &c. 
ISSUE, 

Whether  an  indefinite  faihire  of  issue  is  meant,  or  merely  a  failure 
of  issue  within  a  certain  time,  in  cases  of  a  limitation  over  on 
failure  of  issue. 

In  devises  oi  real  estate  before  1S38,  the  words,  "^/e  without 

issue,"  "die  without  leaving  issue,"  "m  default,''^  or  "o;i 

failure,"  or  ^'^ for  want  of  issue  "  were  all  held  to  import 

an  indefinite  failure  of  issue  .  .  §538 

But  in   bequests  of  personal  estate  before  1838,  the   words 

"die   without  leaving  issue,  were  not  so  construed,  though 

the  other  expressions  were  construed  in  that  manner    §  539 

Where  the  devise  to  tiie  issue  male  \sJ,ntroduced  by  words  of 

contingency,  and  the  limitation  over  is  to  take  effect  in  the 

opposite  event  of  there  being  no  son  .  §  540 

Where  the  devise  is  to  the  children  of  the  prior  taker  equally, 

and  their  heirs,  with  a  limitation  over  in  case  he  should  die 

without  issue,  which    depends  on  his  having  no   children 

§  541 

Wiiere  the  devise  is  to  the  issue  <f  the  prior  taker,  and  their 

heirs,  with  a  limitation  over  in  case  he  should  die  without 


INDEX.  4ti9 

ISSUE — continued. 

issue,  or  all  such  issite  should  die  without  issue,  and  tlie 
first  contingency  is  that  of  the  prior  taker's  dying  without 
children,  and  the  second  is  that  of  Ijis  children  dying  without 
issue  ....  §  5 12 

Words  referring  to  a  failure  o{  such  issue,  import  an  indefinite 
failure  of  issue,  or  not,  according  to  the  degree  of  compre- 
hensiveness of  the  antecedent  expressions  .  §543 
They  do,  where  such  expressions  comprise  all  the  issue 
generally,  or  male  or  female             .                 .       §  543 
They  do  not,  where  such  expressions  comprise  some  only 
of  the  issue  generally,  or  male  or  female:  as  where  the 
devise  is  to  the  sons,  daughters,  or  children  of  the  prior 
taker             .                 .                 .                 •  §  543 
Where  the  issue  are  referred  to  by  the  name  of  children,  and 
thereby  explained  to  mean  children                 .  §  547 
Where  the  issue  arc  so  referred  to  in  the  limitation  of  one 
moiety,  but  not  in  the  limitation  of  another  moiety.       §  548 
Where  the  property  is  limited  over  on  death  under  a  certain 
age  without  issue             •                 •                 •  §  ^'^^ 
Where  a  devise  over  is  on  death  within  a  limited  period,  or 
without  issue,  and  "  or  "  is  construed  "  and  "  §  550 
Where  a  devise  over  is  on  death  under  a  certain  age,  or  on 
subsequent  death  without  issue             .                 .         §  551 
Where  a  devise  over  is  in  the  event  oi  death  without  leaving 
issue,  or,  having  such  issue,  of  such  issue  dying  under  a 
certain  age  without  issue               .                  •  §  552 
Where  a  bequest  over  is  to  the  survivor,  ivithout  words  of 
limitation             .                 .                 .                 •       §  553 — 4 
Where  a  bequest  over  is  to  the  survivor,  with  words  of  limi- 
tation               .                  .                  .                  •  §  555 
Where  property  is  bequeathed  to  two  sisters,  with  a  limita- 
tion over,  on  the  death  of  one  without  issue,  to  her  sister 

§  55G 
Where  it  is  directed  that  the  property  shall  go  over  after  the 
prior  taker^s  decease  .  .  •  §  557 

Where  a  limitation  over  is  preceded  by  a  bequest  to  such  of 
the  prior  laker's  issue  as  he  shall  appoint  to         .         §  55S 
Where  all  the  ulterior  limitations  are  for  life  only  §  559 

Where  the  devise  over  is  i'or  pay  77ient  of  debts         .         §  560 
W^here  the  estate  is  subject  to  the  pay/nenl  (fa  su7n  to  be  dis- 
posed of  by  the  will  uf  the  prior  taker  .  §  561 
Where  a.  to-m  for  raising  legacies  is  limited  on  the  expiration 
of  an  estate  tail,  and  the  legacies  are  held  to  be  given  on  the 
same  event               .                 .                 .                 •        §  ^^^ 
Enactment  of  1   flct.  r.  26,  s.  29         .                  .  §  563 
Whether  the  word  issue  is  a  word  of  purchase  or  a  word  of  limi- 
tation, 
( 1 )  where  there  is  no  deviseovcr  on  an  indcfinitcfailurc  of  issue. 
Vol.  II.— 48 


470  INDEX. 

ISSUE — continued. 

Where  the  word  issue  is  a  word  o{  limitation,  in  the  case 

oi  dij-ect  devises  and  trusts  executed  .         .     §  504 

Where  it  is  a   word  of  purchase,  iu  the  case  of  direct 

devises  and  trusts  ea.'ec?//e(i  .  .  §505 

Rule  embracing  both  the  preceding  rules  .         §  506 

Difi'erent  senses  of  the  word  issue  .  §  507 

It  is  di  vj or di  either  of  purchase  or  of  limitation  in 

a  will ;  but  always  a  word  of  purchase  in  a  deed 

§  508 
Why  it  is  a  word  of  purchase  in  a  deed  §  509 

It  is  ill  adapted  for  a  word  o^ purchase,  §510 — 512 
But  it  is  ivell  adapted  for  a  word  of  limitation,  §  513 
And  this  is  one  of  the  grounds  of  the  foregoing  rules 

§  514 

How  the  testator  mciy  manifest  an  intention  that  the 

word  issue  should  not  be  a  word  of  limitation 

§  515 
It  is  7\ot  manifested   by  superadding  kindred 
words  of  limitation,  OY  giving  the  ancestor  an 
estate  expressly  for  life,  or  without  impeach- 
ment of  waste  .  .  §  516 
Nor  by  introducing  ivords  of  contingency,  which 
would  have  been  implied      .         .  §  517 
Nor  by  prohibiting  the  ancester  from  commit- 
ting toast e             .                  .             .         §  518 
These  indications  are  ecjuivocal      .  §  519 
Another  ground  of   the  foregoing   rules;    namely, 
tivo  coexisting  yet  inconsistent  intents,  the  one  of 
which  must  be  sacrificed  to  the  other         .     §  520 
Definition  oi  ihe primary  or  paramount  intent 

§521 
Definition  of  the  secondary  or  minor  intent,  §  522 
By  what  the  primary  or  paramount  intent  is 
imported  or  evidenced  .  §  523 — 4 

Observations  showing  the  expediency  and  propriety 
of  construing  issue  a  loord  of  limitation,  in  order 
to  effectuate  the  primary  or  paramount  intent  in 
cases  falling  within  \k\e,  first  rule     .  §  525 — 6 

Observations  showing  the  propriety  of  construing 
issue  a  word  of  purchase,  in  cases  falling  within 
the  second  rule  .  •  •  §  527 

There  is  less  presumption  against  construing  issue  a 
word  of  purchase,  than  there  is  against  construing 
heirs  a  word  of  purchase,  especially  heirs  gene- 
rally .  .  .  §  528 
Illustrations  of  the  first  rule         .         .  §  529 
second  rule  §  530 


INDEX.  471 

ISSUE— continued. 

Where   the   disposition    is   by  way  of  executory  trust, 

—  by  marriage  settlement  .  .  §531 

—  by  will  .  .  •  §  532 
Where    the    two    limitations    arc    7wt    both    legal   or    both 

equitable  .  .  .  §  533 

Where  the  issue  cannot  take  by  purchase,    on    account    of 
iha  rule  against  pc7yetiiities  .  .  §  533a 

(2)  where   there    is   a   devise   over   on  an    indeftnite  failure   of 
issue. 

Where    the    ancestor    takes    an   estate    tail    in    possession 

§  569—570 

Where    (upon  principle)  the    ancestor  would  take  an  estate 

tail  in  remainder         .  .  .  §  571 

Absurdity  of  contrary  doctrine  ,  §  572 

Observations  on  the  fact  that  there  are  decisions  in  support 

of  the  contrary  doctrine  .  .  §  573 

Where  no  estate  tail  can  be  raised  in  remainder         §  574 — 5 

Limitation  over  in  default  of  issue,  an  indication  that  an  aggregate 

sum  given  to  a  class  of  children  is  to  be  shared  by  all     §  232 — 4 

Where  a  limitation  over  in  default  of  issue,  or  a  limitation  of  the 

same  import,  is 

—  a  limitation  of  the  whole  or  the  immediate  part  of  the  re- 
version .  .  •  §  ^"^j  ^^^ — 2 

—  a  limitation  of  a  springing  interest  .         §  379 — 380 

—  an  a//e;virt//ye  limitation  .  §540 — 1,544,649 

—  a  remainder,  capsLh\e  of  operating  either  as  an  alternative 
or  as  a  remainder  .  .  §  545 — 6,  646 — 8 

—  both  a  remainder  and  an  alternative  .  §  542 

LEAVING, 

Construed "  having  had,"  or  '•'  having"         .  .  §  243a 

LEGACY, 

To  a  class, 

Where  an  aggregate  sum  is  given  to  a  person's  children,  and 
there  is  7io  limitation  over  on  failure  of  his  issue,  or  other 
particular   indication   of    intention    that    all    should    take 

§227 — 230c 

Where  a  specif  c  sum  is  given  to  each  .  §  231 

Where  there  is  a  limitation  over  in  default  of  issue  of  the 

parent,  or  some  other  indication  of  an  intent  that  all  should 

take         .  .  .  .  •         §  232—4 

See  Portions. 

LIEN,  defined  .  .  .  §  74 

LIFE  ESTATES, 

Intended  perpetual  succession  of, 

—  by  way  of  executory  trust,  in  favour  of  unborn  descendants 

§  536 


412  INDEX. 

LIFE  ESTATBS—coniinued. 

—  in  favour  of  children  in  esse,  and  more  remote  descendants 

§  536a 
LimUed  number  of  .  .  .  §  536b 

See  Remoteness  ...  §  711 — 713 

LIMITATIOxN, 

Two  senses  of  the  word  .  .  •  §  24 

Z)c;?n///o?i  of  a  limitation  in  the  or^m«/ sense       .  §26 

in  the  derivative  sense  §  106 

In  the  original  sense  oi  di  restrictive  expression  forming  the  litniis 
or  bounds  to  the  quantity  of  an  interest, 

Z^/ij/^/o/i  of  such  Hmitations     .  .  .  §  27 

General  hmitations, 

Defined  .  .  .  .  §  28 

Either  express  or  implied         .  .  .     §  30 

Examples  of  ea7?/'e.w  general  limitations         .        §31 — 2 
Instances  of  implied  general  limitations  §  33 

Special  or  collateral  limitations, 

Defined,  .  .  .  .  §34 

Examples  .  .  .  .         §  35 

Remarks  on   the  term   ^'  collateral'   applied   to  special 
limitations  .  .  .  §  36 

Distinguished  from  conditional  Vimha.lions,        §  153 — 4 

And  see  §  263— 273a 
Either  regular  or  irregular  .  .  §  37 

Definition  of  a  regular  special  limitation  §  38 

an  irregular  special  limitation  §  39 

Qualification  of  a  regular  special  limitation  §  40 

Definition  of  a  direct  regular  limitation  §  41 

an  indirect  regular  limitation  §  42 

Same  contingency  may  be  both  a  special  limitation  and 
u  condition  precedent  .  .  §43 

Where  a  subsequent  interest  depends  on  the  determina- 
tion of  the  prior  interest, 
by  force  of  a  regular  special  limitation  §  263 

an  irregular  special  limitation, 

§  264—9,  297 
Where  the    prior  interest    should  be  determinable    by 
force  of  a  special  limitation,  and  the  subsequent  interest 
be  limited  by  way  of  remainder  §  278,  2S0 

Effect  of  the  invalidity  of  a  special  limitation  §  701 

In  the  derivative  sense  of  an  entire  sentence  creating  an  interest, 
Division  of  such  limitations  §  107,  111,  Hid — g,  112 

Definition  oS.  d.  simple  limitation         •  .  §  108 

qualified  limitation  .  .      §  109 

Distinction  between  directly  qualified  and  indirectly  quali- 
fied limitations  ,  .  .  §110 
Definition  oi  immediate  and  executory  limitations          §111 
absolute  limitations       .                 .                 §  1 '  3 


INDEX.  473 

LIMITATION— co/i//;a^<?(/. 

/lypolheticalVumtai'ions  .  .         §114 

limitations  in  default  nf  appointment  §  115 

limitations  creating  poivers  of  appointment,  §  116 
Limitati(ms  operating  differently  in  regard  to  another  limi- 
tation in  different  events. 

An  interest  may  be   limited  to  take  eirect  either  as  an 
alternative,  or   as  a   reinainder   or    r/vasi   rc7nainder 

§  6GS,  542 
An  interest   shall,   if    possible,   be  constrnecl    as    a    re- 
mainder or  quasi  remainder,  as  well  as  an  alternative 
§  666a;  and  cases  stated,  §  545 — 6 
Every  remainder  or  quasi  remainder  has  the  efTect  of  an  al- 
ternative Umitation,  in  case  the  preceding  interest  never 
vests  .  .  .  •          §  669,  672 

Consequence  of  the  above  rule,  as  regards  chattels  which  are 
to  go  to  the  persons  entitled  to  real  estates  entailed  §  669a 
Instance  of  a  remainder  taking  effect  as  such,  though  taking 
effect  as  an  alternative  as  regards  the  possession  §  670 

An  interest  may  be  limited  to  take  effect  either  as  an  alterna- 
tive, or  as  an  interest  under  a  conditional  limitation,  §  670a 
An  interest  may  be  limited  to  take  effect  either  as  a  remainder, 
or  as  an  interest  under  a  conditional  limitation         §  670* 
A  mere  conditional  limitation  will  have  the  effect  of  an  alter- 
n«/ztje,  if  the  prior  interest  never  vests  .         §671,672 

Exception  .  .  •  •         §  672a 

So  also  will  a  limitation  of  a  sjjringing  interest  of  the  seventh 
kind  .....§  671a 
Conditional  limitation  becoming  a  remainder  m  the  room  of 
a  preceding  remainder  in  fee  .  .  §  673 

A  future  interest  is  not  construed  an  interest  under  a  condi- 
tional limitation  or  a  springing  interest,  when  it  can  be 
construed  a  remainder  .  .  •         §  674 

But  when  the  preceding  freehold  fails,  a  future  interest  which 
would  otherwise  have  been  a  remainder,  is  construed  a 
springing  interest  .  .  •  §  675 

And  an  ulterior  interest  in  remainder  also  becomes  a  springing 
interest,  abstractedly  regarded,  though  it  is  a  rcyjiainder  as 
regards  the  less  remote  springing  interest  .         §  676 

And  so,  in  other  cases,  until  a  less  remote  future  interest  vests, 
an  ulterior  interest  in  remainder  is  a  springing  interest,  ab- 
stractedly considered,  though  it  is  a  re^nainder  as  regards 
such  less  remote  future  interest      .  .  §  677 

Liinitations  operating  differently  in  regard  to  different  limi- 
tations. 

The  same  limitation  may  be  a  remainder,  an  alternative,  and 

:i  conditional  \\\r\\\^{\or\         .  .  §678 — 6S1 

The  same  limitation  may  be  an  alternative  and  an  augmcntu- 

tire  limitation,  or  a  limitation  of  a  springing  interest  §  6S2 


474  INDEX. 

LIMITATION— co?ieinued. 

Every  more  remote  limitation  may  be  a  remainder  as  regards 
a  prior  limitation,  though  not  Umited  next  after  it     §  6S2a 
Limitations  intended  to  operate  in  different  ivays  in  regard  to  dif- 
ferent portions  of  properly. 

Limitations  may  operate  in  this  way         .  .         §  683 

A  limitation  may  be  penned  so  as  to  operate  as  a  conditional 
limitation  and  as  a  limitation  of  a  springii^g  interest  in  re- 
gard to  dilTorent  portions  of  property  .  §  684 
A  limitation  may  be  so  penned  as  to  operate  as  an  alternative 
and  as  another  kind  of  limitation  in  regard  to  different 
portions  of  property                 .                 .                 .         §685 
Objection     .                  .                  .                 .  §  686 
Words  of  limitation  defined     .                 .                 •         §  404 
See  Issue     .                  .                  .                  .       §  506—528 
See  Remainders,  generally. 
Contingent  Remainders. 
Quasi  Remainders. 
Reversion. 
Springing  Interests. 
Augmentative  Limitations. 
DiMiNUENT  Limitations. 
Absolute  Limitations. 
Hypothetical  Limitations. 
Conditional  Limitations. 
Appointment,  limitations  creating  powers  of,  and  limitations 

in  default  of. 
Alternative  Limitations. 
LIVERY  of  seisin, 

Where  it  is,  and  where  it  cannot  be,  dispensed  with,  in  the  case  of 

an  enlargement  of  an  estate  on  condition      .  §  138 — 144 

Must  pass  a  present  freehold,  and  cannot  give  a  freehold  in  fu- 

turo       .  .  ...  §  141 

See  Seisin. 

MAINTENANCE.     See  Vested  .  .  .  §  367—9 

MARRIAGE, 

Residuary  bequests  on  ...  §  341 

MERGER.     See  Destruction — Rule  in  Shelley's  Case. 

OFFICES, 

Not  previously  subsisting  might  be  limited  infuiuro,evev\  at  com- 
mon law         ....         §  Ilia,  note  (e) 
ON, 

Devise  or  bequest  to  A.  on  &c.  .  .  §  285 — 6 

OR, 

Where  "or"  is  construed '■'■  and  ^''  in  limitations  over 

—  of  real  estate  on  death  under  a  certain  age,  or  without 
issue  .  .  .         §  235 — 6 


INDEX.  175 

OR — continued. 

—  of /7er*ona/ estate  ill  the  same  event  .  §237 

—  of  7'eal  estate  on  death  under  a  certain  age,  or  icithout 
children  .  .  .  .  §  238 

—  of  7'eal  or  personal  estate  on  deatli  ivilhin  some  other  time, 
or  without  leaving  some  other  object  who  might  derive  a 
benefit  through  the  devisee  or  legatee  §  239,  243,  550 

Where  "or"  is  not  construed  ^'^  und'^  .  •         §  240 

^'^  Jlnd^^  is  not  construed  "or,"  in  hmitations  over  on  death  under 

a  certain  age  and  witliout  issue  .  ,  §  2  37a 

Contingency  of  an  alternative  Hmitation  sometimes  implied  by  the 

word  "or"     .  .  .  .  .         §  135 

OWNERSHIP 

Defined    .  .  .  .  .  §46 

In  what  manner  divisible         .  .  §  52,  355,  58 

May  reside  in  different  persons,  but  not  without   privity  of 

estate  .  .  .  •  §  52 — 57 

Cannot  be  in  abeyance  .  .  .  §  59 

Consequences  of  this  .  .  •  §  ^0 — 62 

PAYABLE, 

In  a  clause  of  survivorship  or  cesser,  or  a  hmitation  over,  is  re- 
ferred exclusively  to  the  age  specified  or  marriage,  and  means 
vested  .  .  .  .         .         §  242 

PAYMENT,     ^'ee  Vested      .  .  .  §310—327 

PERPETUITIES, 

General  rule  against  .  ,  •  §  70G — 8 

See  Life  Estates — Remoteness. 
PERSONAL  ESTATE, 

Limitations  of  personal  estate,  similar  to  limitations  which  would 
create  an  estate  tail  in  real  estate, 

Chattels  cannot  be  entailed        .  .  •        §  593 

General  rule  resulting  from  this         .  .  §  593a 

Bequests  to  or  for  a  person  and  the  heirs  of  his  body     §  593b 
Limitations  to  or  for  a  person  for  life,  with  remainder  to  the 
heirs  of  his  body, 

—  which  would  create  an  estate  tail  in  real  property 

§  594—5 

—  which  would  not  create  an  estate  tail  in  real  property 

§  596 
Disposition,  by  direct  gift  or  trust  executed,  in  favour  of  a 
person  and  his  issue, 

—  which  would  create  an  estate  tail  in  real  property 

§  597 

—  which  would  not  create  an  estate  tail  in  real  property 

§  597a 

Executory  trust  in  favour  o[  a  person  and  his  issue         §  598 

Limitations  over  on  an  indefinite  failure  of  issue  §  599 

Limitations  over  on  failure  of  children  only,  or  of  issue  within 

a  given  time  .  .  .  •         §  600 


476  INDEX. 

PERSONAL  ESTATE— continued. 

Limitations  of  personal  estate  to  or  in  trust  for  the  persons  entitled 
to  real  estates  entailed, 

Rule  L  Where  siicli  limitations  are  7iot  by  way  of  executory 
trust  .  .  .  .  §  601 

Rule  II.  Where  they  are  by  way  o{  executory  trust         §  602 
The  distinction  exhibited  in  these  two  rules  is  in  accord- 
ance with  the  distinction  made  i?i  other  cases      §  603 
Grot/??^/*  of  the  distinction  .  .  §604 — 6 

Executory  trusts  should  be  construed  according  to  the 
second  rule  ...  §  607 

especially  when  created  by  marriage  settlement  or 
articles  .  .  •    •        §  ^^8 

A  gift  through  the  medium  of  a  direction,  is  not  neces- 
sarily a  trust  executory  .  .      §609 — 613 
The  words  "50  far  as  the  rules  of  law  ivill  jjennit^^ 
preclude  any  intendment  contrary  to  law        .        §  614 
But  they  do  not  enable  the  Court  to  tie  up  chattels  for 
any  longer  time        .                 .  .  §  615 
Difference  of  ojnnion  among  the  Judges  in  Duke  of  New- 
castle and  Countess  of  Lincoln        .                 .        §617 
Observations  of  Lord  Loughborough  §  618 
Observations  of  Lord  Eldon  in  the  same  case    §  619 
and   in  Jervoise  v.   Duke  of  Northumberland 

§  620 
Meaning  of  the  expressions  used  by  Lord  Lough- 
borough .  .  •  §  621—2 
Executory  trust  by  will  ought  not  to   be  construed 
so  as  to  confer  an  indefeasible  vested  interest  on 
the  first  tenant  in  tail  at  his  birth           .        §  623 
And  in  fact  no  such   construction  of  an  executory 
trust  has  been  adopted     .                 .  §  624 
Lord    Eldon   supposed   that   directory  trusts  were 
synonymous  with  executory  trusts           .        §  625 
Objection  urged  by  Lord  Eldon           .          §  626 — 8 
Observations  on  some  other  remarks  of  Lord  Eldon 

§  629—630 

Observations  of  Lord  jGr*A;mc     .  .       §631 

Remarks  thereon  .  .  §  632 

Concluding  observations  .  §  634 — 7 

See  Quasi  Remainder. 

PORTIONS  or  LEGACIES, 

Apparently  depending  on  surviving  parents,  as  a  condition  prece- 
dent. Application  of  the  rule,  that  an  interest  shall  be  con- 
strued to  be  vested  rather  than  contingent. 

General  Principles. 

When  the  leaning  in  favour  of  vesting  is  peculiarly  strong, 

§215 


INDEX.  477 

It  is  so  wlicjc  a  portion  or  legacy  seems  to  depend  on  snr- 
viving  jxtrcnts  ■  ■  •  §216 

Disliiiction,  between  a  gilt  by  luill  and  a  trust  by  setllcmcnt, 

§217 

Leaning  against  construing  survivorship  a  pre-rcquisite,  is 
strong  even  in  the  case  of  a  toill  .  .        §  218 

But  much  stronger  in  the  case  of  a  man-iage  setllejueyit,  §  21f} 

Specific  Rules. 

Where  one  child  survives,  and  the  words  importing  necessity 
of  surviving  arc  construed  so  as  to  achnit  others  who  did 
not  survive  .  .  .  .  §  220 

Where  no  child  survives,  but  words  importing  necessity  of 
surviving  are  construed  so  as  to  admit  those  ivho  did  not 
survive    .  .  •  •  •        §  221 

Wliere  no  child  siirvives,  and  none  are  admitted  §  222 

Apparently  liable  to  be  defeated  by  a  condition  subsequeyit  in  case 
of  not  surviving  parents.     Application  of  the  rule  that  an  inter- 
est ought  to  be  construed  to  be  absolute  rather  than  defeasible. 
Postponement  of  payment  till  after  parents'  death  is  a  post- 
ponement of  the  actual  possession  only         .  §  2  11 
Word  payable  in  a  clause  of  survivorship  or  cesser,  or  a  limi- 
tation over,  is  referred  exclusively  to  the  age  specified  or 
marriage                  .                 .                •                 •        §  242 
Words  supplied,  or  the  word  '^or''  changed  into  "wnof"  §  243 
Zeav/n^  construed  ^' having  had, ^^  ox  "having" 
Where  the  children  who  do  not  survive,  take  nothing 
POSSESSION, 

Different  modes  of      .  •  • 

IVIere  possession  rightful  and  unlimited 
Mere  precarious  possessions 
POSSIBILITY, 

In  the  technical  and  specific  sense  of  the  term  . 
In  the  popular  sense 

Of  reverter         .  .  •  •  • 

Less  than  a  .  .  •  • 

See  Expectancy — Interest — Quasi  Interest. 
POWER  of  xVppointment, 

Defined  .  .  •  .  .  §  72 

See  Appointment. 

Vested  .  .  •  •          §  369—374 

Remoteness  .  .  •  •     §  72S— 735 

PRACTICAL     Suffffestions     connected     with     Special     Lmntations 

^^  §  377—380 

PRESUMPTION,  where  admitted  .  .  .  p.  78 

PROPERTY.     .S'ee  Ownership. 
PROFITS.     See  Income. 
Vol.  H.- 4;> 


§  243a 
§  244 

§  49 
§  50 
§70 

§  69 
§71 
§  69 
^Wl 

478  INDEX. 

PROVIDED, 

Is  one  of  the  three  technical  words  introducing  a  condition  sub- 
sequent .  .  .  .  §  16,  18 
Introducing  an  irregular  special  or  collateral  limitation      .         §  39 
See  A'ksted                ....              §  290 — 7 
PURCHASE, 

Words  of  purchase  defined  .  .  •  §  403 

Word  heir  a  word  either  of  purchase  or  of  limitation       §  402 

See  Issue  .  ...  §  504 — 533a 

QULIFIED  FEE,  interest  limited  on  a  .  .  §  126—7 

QUASI  ENTAIL, 

Under  the  statute  De  Donis  .  .  §  426 — 7,  435a 

See  Personal  Estate. 
QUASI  INTEREST, 

Defined         .  .  .  .  .  §  69 

Different  species  of  .  .  .  .  §  69 

QUASI  REMAINDER, 

Defined  .  .  .  .  .  §  168 

There  cannot  be  a  remainder  in  personal  property         .         §  1 68 

Chattels  real  may  now  be  limited  over,  but  a  limitation  over 

of  them  is  not  a  remainder,  strictly  so  called,  though  it  may 

be  analogous  to  one         .  .  .  §  168a 

The  same  is  the  case  with  chattels  personal        .  §  168b 

RECOVERY, 

Alienation  of  executory  interests  by  suffering  a  recovery        §  756 
Destruction  of  contingent  remainders  thereby  .  §  770 

other  executory  interests  .  .         §  789 

REMAINDER, 

Z«a?  *e;25e  of  the  term  .  .  .  .       §  159 

Definition  of  a  limitation  of  a  remd-'mder,  properly  so  called,  §  159 

Distinguished /ro7n  future  bequests  .  .       §  159a 

co7idit io?ial  Vnmtdiiions  .  §160 

alternative  limitations  .  .  §  161 

the  first  six  kinds  of  limitations  of  springing 

interests         .  .  .        §  162 

augmentative  limitations  .  §  163 

diminuent  limitations  .         .  §  164 

the  seventh  kind  of  limitations  of  springing 

interests  .  .  .       §  165 

limitations  of  the  whole  or  the  immediate  part 

oi  the  reversion  .  .  §167 

Of  the  construing  a  limitation  to  be  a  remainder  rather  than  an 

executory  limitation  not  by  way  of  remainder, 

The  general  rule  as  commonly  stated  .  .  §  196 

as  more  accurately  stated  .  §197 

i?e«.9o;i.s  for  the  same         .  .  .  §198 — 9 

After  an  estate /^zfV  ....    §192 — 4 


INDEX.  479 

REM  Al'SDER— continued. 

After  a  life  estate  by  implication  distinguished  from  cases  of  a 
springing  intei'cst, 

Devise   to   testator's  heir  apparent  or  presumptive  after  the 

death  of  another  to  whom  no  devise  is  made,  gives  to  the 

former  a  remainder     .  •  •  •    §  •'*^0 

A  similar  devise  to  the  residuary  devisee  has  the  same  etlect 

§  591 
But  a  similar  devise  to  one  who  is  neither  apparent  or  pre- 
sumptive, nor  residuary  devisee,  gives  him  a  springing  in- 
terest        .  .  .  .  .  §  592 
After  too  remote  an  interest    ...  §  737 
V^h^i  particular  estate  is  necessary. 

A  freehold  mterest  not  preceded  by  a  vested  freehold  cannot 

be  a  remainder     .  .  .  •        ,  §  "'^^ 

A  vested  freehold  interest  after  a  term  for  years  is  not  a 

remainder     .  .  .  •  §  '^^^ 

A  contingent  freehold    interest  limited  after  a  chattel 

interest  at  common  law  is  not  a  remainder,  and  is  void 

§  7G1— 2 
A  contingent  freehold  interest  limited  after  a  chattel  in- 
terest hy  way  of  use  or  devise,  is  good,  but  not  as  a 
remainder         .  .  .  •      §  762a 

A  freehold  interest  limited,  by  way  of  use  or  devise,  after 
a  contingent  interest  only,  is  good,  but  not  as  a  re- 
mainder .         .  .  .  •     .  §  "'^^ 
A  freehold  interest  limited  after  a  contingent  interest 
only,  at  common  law,  is  not  a  remainder,  and  is  void 

§  763a 
Time  for  vesting  oi  ....  §702 

See  Contingent  Remainder. 
Quasi  Remainder. 
REMOTENESS, 

General  Rule  against  Perpetuities. 

The  rule  slated  .  .  •  .  §  706 

i?e«50«  for  fixing  a  limit  of  some  kind  .  .  §707 

adopting  the  limits  fixed  by  the  rule  .  §  708 

Specific  Rules. 
Limitations  in  favour  of  unborn  persons,  ivhether  forming  a  class 
or  not. 

A  limitation  must  be  such  as  77iust  take  eflect  withm  the  pre- 
scribed period,  if  at  all         .  .  .  §  709 
Hence  limitations  to  children  of  persons  not  in  esse  at  Uie 
dateof  the  will,  are  not  good       .                 •                 •   §710 
Nor  are  clauses  designed  indirectly  yet  virtually  to  hunt  es- 
tates to  the  issue  of  an  unborn  person  as  purchasers    §  710a 
But  limitations  to  unborn  children  of  persons  in  esse  arc  good 

§  711 


480  INDEX. 

REMOTENESS— co?2//?i?/e^/. 

It  has  been  thought  that  a  hfe  interest  cannot  be  hmited 

to  an  unborn  jierson  .  .  §  712 

But  this  notion  is  erroneous        .  .         §  713 

Limitations  on  Sl  failure  of  issue  .  .  §  714 

Two  preliminary  quest io7is      .  .  §715,716 

Answer  to  these,  as  regards  real  estate  •         §  717 

Answer  to  the  first  question,  as  regards  personal  estate 

§718 

Personal  estate  cannot  be  entailed,  and  a  limitation  over 

on  an  indefinite  foilure  of  issue  is  void  for  remoteness 

§719 

The  construction  of  such  a  limitation  is  the  same, 

where   the   prior   taker   has   a   life   interest   only 

§719 

Trusts  of  a  term  limited  previous  to  an  estate  tail,  for  raising 

portions  on  the  failure  of  issue  inheritable  under  the  entail 

§720 

lAmxidiXions  ox\  ^  failure  of  heirs  .  .  §  719a 

Interests  to  vest  on  the  sustaining  a  certain  character  §  721 

Interests  limited  to  unborn  persons  forming  a  class,  whether  at  a 

given  age  or  otherwise 

Where  the  vesting  of  a  devise  or  bequest  to  a  class  is  suspend- 
ed till  a  certain  age,  and  some  of  them  may  not  be  in  esse 
till  too  late  a  period  .  .  •         §  "^22 

Distinction  suggested  that  some  should  take  under  the 
will,  where  none  could  take  in  case  of  an  intestacy; 
but  that  none  should  take  under  the  will,  where  they 
could  all  take  in  case  of  intestacy  .  §  723 

Objection  answered     .  .  •          §  "^24 

Where  a  testator  gives  to  some  only  of  a  class,  to  keep  within 
the  rule  against  perpetuities,  and  yet  limits  over  a  failure  of 
the  whole  class  ...  §  725 

Where  a  testator  gives  to  some  only  of  a  class,  without  trans- 
gressing the  rule  against  perpetuities,  but,  in  terms,  limits 
over  on  failure  of  the  whole  class,  and  yet  apparently  in- 
tended to  create  a  mere  alternative  interest  .         §  726 
Jilternative  limitation  void  for  remoteness                 .  §  727 
Powers, 

Interests  under  particular  or  qualified  powers  must  be  such 
as  would  have  been  good  if  created  by  the  deed  or  will  con- 
taining the  power       .  .  .  •         §  "^^8 
But  interests  under  general  powers,  need  not  he  of  such  a 
character          .                .                 .                 .  §  729 
Reason  of  the  above  distinction          .                 .         §  730 
Powers  to  arise  on  an  indefinite  failure  of  issue         §  731 — 2 
Powers  of  appointment  among  a  class  of  persons,  some  of 
whom  will  probably  come  in  esse  within  the  period  pre- 
scribed by  the  general  rule              .                 .           §  733 — 4 
Powers  of  *a/e            ....         §735 


INDEX.  1S1 

REMOTENESS— <'o;2///H<«/. 

Ceutaix  points  connected  with  Remoteness. 

Where   the  absolute   interest   is  afterwards  restricted  to  a   life 
interest,  with  a  Ihiiitatioii  over,  wliich  is  void  lor  remoteness 

§  73G 

Remainder  after  too  remote  an  interest  .  §  737 

Money  raised  by  a  term  well  created,  the  uses  whereof  are 

void  for  remoteness  .  .  •         ^  738 

RENTS, 

Conditions  relating  to  .  .  .  ^10 

Not  previously  subsisting,  might  be  limited  in  faturo  even  at  com- 
mon law         .  .  .  .         §  Ilia,  note  ie) 
RESULTING  TRUST, 

Where  money  raised  by  a  term,  the  uses  whereof  are  void  for  re- 
moteness, is  a  resulting  trust  .  .  S  738 
REVERSION, 

Definition  of  a  limitation  of  the  whole  or  the  immediate  part  of  the 
reversion        .  .  .  .  .         §  Icy 

Certain  cases  of  interests  under  limitations  of  the  ivhole  or  the  im- 
mediate part  of  the  reversion,  distinguished  from  contingent 
remainders  of  the  third  class,  and  from  springing  interests. 
Where  a  limitation  is  to  take  effect  after  the  death  of  a  person 
laho  has  a  life  estate  under  a  previous  instrument,  and 
sucli  limitation  is  a  limitation  of  the  whole  or  tiie  immediate 
part  of  the  reversion,  instead  of  a  contingent  remainder  of 
the  third  class  .  .  .  •         §  375 

Or  instead  of  a  limitation  of  a  springing  interest  §  37G 

Observation  grounded  on  the  foregoing  distinctions,    §  377 
Where  a  limitation  is  to  take  effect  on  an  indefinite  failure  of 
issue  who  are  all  inheritable  under  estates  tail  created  by  a 
previous  instrument;  and  such  limitation  is  a  limitation  of 
the  whole  or  the  immediate  part  of  the  reversion  §  37S 

Where  a  limitation  is  to  take  effect  on  an  indefinite  failure  of 
issue,  some  of  whom  are  not  inheritable  under  such  estates 
tail,  and  such  limitation  is  a  limitation  of  a  springing  inter- 
est, .  .  .  .  §  379 
Exception,  where  the  interval  may  ha  filled  up  by  impli- 
cation.             .                  .                  .                  •  §  3S0 
Where  such  implication  docs  not  arise       .                 §  3S0 
Where  a  limitation  is  made  of  the  reversion,  eo  diamine,  on 
an  indefinite  failure  of  issue,  some  of  wJiom  are  not  in- 
herital)le  under  such  estates  tail;  and  such  limitation  is  a 
limitation  of  the  whole  or  the  immediate  part  of  the  re- 
version        ....                  §  3S1 
Where  a  limitation  is  to  take  effect  on  an  indefinite  failure  of 
issue,  without  restriction  to  issue  by  a  particular  marriage, 
who  are  alone  inheritable  under  previously  created  estates 
tail;   but  yet   no   other   marriage   was   contemplated,  and 


482  INDEX. 

REVERSIOISI— continued. 

therefore  such  Hmitation  is  a  hmitation  of  the  whole  or  the 
immediate  part  of  the  reversion  .  .         §  382 

RULE  IN  SHELLEY'S  CASE, 
The  Rule  stated. 

Shelley's  case      ....  §  393 

What  is  meant  by  the  Rule  in  Shelley's  case  .         §  394 

The  rule  as  stated  in  Shelley's  case  .  §  395 

The  same  rule  appears  in  the  Provost  of  Beverly' s  case,    §  396 

Observations  on  the  virtual  substitution  of  another  rule,  §  397 

The  rule  may  be  differently  stated  without  losing  its  identity; 

as  it  is  by  Lord  Coke      .  .  .  §  398 

Lord  Coke  retains  the  two  essoiiial  requisites  thereof     §  399 

J^tiother  statement  of  the  rule         .  .  §  400 — 1 

Li77iitations  not  by  way  of  remainder  are  not  within  the 

rule       .  .  .  .  •         §  401a 

Terms  and  Operation  of  the  Rule  explained. 

Word  heir  or  heirs  a  word  either  of  purchase  or  of  limita- 
tion .  .  .  .  •  §  402 
Definition  of  words  of  purchase  .  .  §  403 
Definition  of  words  of  limitation  .  .  §  404 
The  invariable,  proximate,  and  proper  operation  of  the  rule 

§  405 
The  occasional,  mediate,  and  indirect  effect  thereof  §  406 

Diff'erenl  modes  in  which  the  subsequent  interest  is  executed 
in  the  ancestor      .  .  .  •  §  407 

In  possession,  absolutely  .  .  §  408 

In  Interest        .  .  .  •  §  409 

In  possession,  subject  to  the  liability  of  afterwards  be- 
coming only  executed  in  interest.         .  §  410 
In  possession  to  some  purposes  only               .    §411,412 
Cases  of  joint  tenancy  to  be  distinguished 

§  413—417 
As  a  contingent  remainder      .  .  §418 

Grounds  of  the  Rule  explained. 

I.  Prevention  of  fraud  upon  feudal  tenure  .  §  419 

II.  Prevention  of  fraud  upon  the  specialty  creditors  of  the  an- 
cestor ....  §  420 

III.  Desire  of  facilitating  alienation     .  .  §  421 

IV.  These  reasons  involve  another  .  §  422 
Namely,  that  the  two  limitations  would  generally  and  in  the 

main  have  virtually  accomplished  the  same  purpose  as  a  gift 
of  the  inheritance  to  the  ancestor  .  .         §423 

Illustration  of  this     ...  §  424 

Certain  objections  answered  .  .         §  425 

Answer  to  another  objection  drawn  from  the  case  of  fic- 
titious descents  per  formam  doni  .  §  426 — 7 
Fearne's  answer  to  the  objection  that  the  rule  frustrates 
the  testator^s  intention         .                 .  §  428 


INDEX.  483 

RULE  IN  SHELLEY'S  CK^F.— continued. 

V.  The  object  of  the  rule  is  to  give  efFcct  to  the  primari/  or 

pardvwunt  intent  at  the  expense  of  the  secondary  or  minor 

intent  ....  §  429 

Definition  oi  {\\c  primary  or  paramount  intent         §  4  30 

Definition  of  the  secondary  or  minor  intent      .         §   131 

The   primary  or  paramount  intent   is  imported  by   the 

word  heirs,  in  connexion  with  the  preceding  freehold 

§432 

Necessary  to  reject  the  secondary  or  minor  intent,  in  order 

to  effectuate  tlie  primary  or  paramount  intent        §  433 

both  in  the  case  of  Umitations  to  heirs  i^eneral  §  434 

and  in  the  case  of  limitations  to  heirs  special     §  435 

Answer  to  an  objection  drawn  from  tlie  case  of  a 

fictitious  descent  per  formam  doni  §  435a 

It  is  accurate  and  definite  to  say  that  the  secondary  or 

minor  intent  is  sacrificed  to  effectuate  the  primary  or 

paramount  intent  .  .  •         §  '136 

Observations  of  Lord -ffef/e5£/a/e  .  §437 

Denman  .  .         §  438 

They  are  just,  but  arc  not  explanatory  of  the  grounds 

of  the  rule  .  .  •         §  439 

Why  the    technical    words   overrule    tlie   other   words, 

§  440—2 
Wherein  consists  the  incorrectness  and  vagueness  of  the 
common  statement  of  the  principle  of  the  rule      §  443 
Observation  of  Lord  Eldon  on  the  general  and  particu- 
lar intent        .  .  .  •         §  444 
Butler  on  the  general  and  particular  intent 

§  445 
The  rule  is  not  a  medium  for  discovering  the  intention 

§  446 

But  the  rule  is  a  means  for  effectuating  the  primary  or 

paramount  intention,  when  discovered  .         §  447 

The  rule  is  indeed  levelled  against  the  intent  §  448 

But  only  against  the  secondary  or  minor  intent      §  449 

Summary  of  the  grounds  of  the  rule        .  .  §  450 

Application  and  Non-application  of  the  Rule,  in  Cases  of 

Legal  Estates  and  Trusts  Executed. 

Preliminary  caution  .  .  .         §  451 

Three  general  propositions  may  be  laid  down  §  452 

1.  First  general  proposition,  showing  where  the  rule  ap- 
plies, notwithstanding  apparent  indications  to  the  contrary 

§453 
L  Limitation  for  life  only     .  .  •  §  454 

2.  Or  without  impeachment  o{  ivaste  .  .     §  455 

3.  Power  \o  jointure  or  make  leases    .  .  §  45G 

4.  Obligation  to  repair  .  .  ,     §  457 

5.  Restraint  (f  alienation  ...  §  458 


484  INDEX. 

RULE  IN  SHELLEY'S  CAS>E— continued. 

6.  Limitation  to  trustees  to  preserve  contingent  remainders, 

§  459 

7.  Limitation  to  heirs  for  their  lives  .  .  §  460 
S.  Concurrence  of  several  of  these  indications  .  §461 
9.  Freehold  determinable  in  ancestor's  lifetime  §  462 

10.  Freehold  by  implication      .  .  •         §  463 

11.  Freehold  by  resulting  use,  where  ?i  remainder  is  limited  to 
{he  heirs  special  of  the  grantor  .  .  §464 — 5 

Even  where  there  is  an  ulterior  vested  interest         §  465a 

Cases  where  the  limitation  is  to  the  heirs  special  of  a  third 

person  .  .  .  .  §  466 

12.  Freehold  by  resulting  use,  where  a  springing  interest  is 

limited  to  the  heirs  special  of  the  grantor  .         §  467 

13.  Where  there  are  apparently  two  concurrent  contingent  re- 
mainders .  .  .  •         §  468 

14.  Where  the  ancestor's  estate  is  not  for  his  own  benefit,  §  469 

15.  Where  both  estates  are  equitable,  even  though  the  first  be 
{or  {he  separate  use  of  d,ien\e  coxen  .  §470 

16.  Where  the  estate  is  copyhold    .  .  .     §  471 

17.  Where  a  limitation  to  right  heirs  male  follows  one  to  first 
and  other  sons  .  .  .         .§  471a 

IS.  Tenant  in  tail  after  possibility  of  issue  extinct  §  471b 

IL  Second  general  proposition,  showing  where  the  rule  ap- 
plies, notwithstanding  apparent  indications  to  the  contrary 

§472 

1.  Word  heir  in  the  singular,  with  the  word  fii^st,  next,  or 
eldest,  but  without  superadded  words  of  hmitation,  §  473 

2.  Words  of  limitation  stiperadded  to  the  word  heirs     §  474 

3.  Superadded  words  of  distributive  modification,  without 
superadded  words  of  limitation  .  .     §  475 

4.  Word  S071S  or  daughters,  referring  to  the  heirs,  if  only 
used  in  the  sense  of  males  or  females,  &c.  .         §  476 

5.  Intention  that  the  Hmitation  should  be  in  strict  settlement 

§  477 

6.  Superadded  words  usually  occurring  in  limitations  to  first 
and  other  sons  in  tail       ...  §  478 

III.  Third  general  proposition,  showing  where  the  rule 
does  not  apply         .  .  .  •        §  479 

Indication  of  the  non-application  of  the  rule  may  be  either 
direct  or  indirect  .  .  .  §  480 

1.  Direct  explanation  or  indication  that  the  persons  who  are 
to  succeed  are  not  persons  who  are  to  take  simply  as  heirs 
general  or  special     .  .  .  •        §  481 

2.  Indirect  explanation  or  indication  .  §  484 

(1)  Word  heir  with  superadded  words  of  limitation, 

§485 

(2)  Limitation  to  the  heir  for  life      .  .        §  486 


INDEX.  A8& 

RULE  IN  SHELLEY'S  CASE— con/mwe^/. 

(3)  Superadded  ivords  of  lirnitatioii  wliicli  limit  the 
Q.s{[\.{(i,  to  persons  of  a  different  sex  .  §187 

(4)  Words  of  distrilnitivc  modification^  with  snjicr- 
added  words  of  limitation  .  .        §  ISS 

(5)  Words  of  distributive  modification,  with  a  limita- 
tion over  in  the  case  of  the  death  of  such  issue  under 
a  certain  age  .  .  •  §  -ISSa 

(6)  By  blending  a  limitation  to  the  heirs  special  of  ano- 
ther person,  and  superadding  luords  of  liniitutioii, 

§  'ISSb 
Aid  afforded,  in  tiik  Application  of   the    Rule,  bv   Impli- 
cation FROM  A  Limitation  ovek  on  Failure  of  issue     §  4S8c 
Application  and  Non-application  of  the  Rule  in  Cases  of 
Trusts  Executory. 

Bef  nit  ion  of  an  executory  tmst  .  .         § -ISO 

I.  Rule  as  to  executory  trusts  created  hy  will  §  190 
Ground  of  distinction  between  trusts  executed  and  trusts  ex- 
ecutory            .                 .                 .                 .                §  191 

Illustrations  oi{\\e  ioxQ02,o\ns,x\\\e  .  §492 — 3 

II.  Rule  as  to  trusts  executory  created  by  marriage  settle- 
ment, with  the  exceptions  thereto  .  §  494 

Distinction  between  trusts  executed  and  trusts  executory  is 
more  strongly  marked  in  the  case  of  those  created  by  mar- 
riage settlement       .  .  .  •        §  'l^-^ 

Illustrations  of  the  second  of  the  foregoing  rules        §  496 — 9 

1.  Cases  constituting  the  frst  exception  to  the  second  of  tlie 
foregoing  rules  ...  §  500 

2.  Cases  constituting  the  second  exception  .        §  501 

3.  The  third  exccptio7i        ...  §  502 
SAID, 

Supplied  .  .  .  .  .        §  725 

Not  supplied  ....  §  G91 

SEISIN  defined         .  .  •  .  §  47 

See  Livery — Ownership. 
SO  LONG  AS,  denoting  a  special  or  collateral  limitation  ^  ^5,  41 

SO  THAT, 

Is  one  of  the  three  technical  expressions  introducing  a  condition 
subsequent  .  •  •  •  §16,   IS 

Introducing  a  special  or  collateral  limitation  of  the  irregular  kind 

§  39 

SON, 

Construed  a  word  of  limitation  .  .  •        §537 

SPRINGING  INTERESTS, 

Definition  of  a  limitation  of  a  springing  interest 

—  in  re«/ property  .  .  •  §117 

—  of  the  first  kind  .  .  .        §  119 

—  of  the  second  kind  .  •  §  1-0 

—  of  the  third  kind  .  .  .        ^  121 

—  of  the  fourth  kind  .  •  ^123 

—  of  the  fifth  kmd  .  .  .       §  124 
Vol.  II.— 50 


486  INDEX. 

SPRINGING  INTERESTS— con/m«e(/. 

—  of  the  sixth  kind  .  .  .        §125 

—  of  the  seventh  kind  .  .  §126 

—  in  7jer,9o/?«/ property  .  .  .      §  127b 
Limitations  of  these  interests  in  real  property  can  only  be  by  luuy 

of  use  or  devise,  and  are  termed  springing  uses  and  executory 
devises     .  .  .  .  .  §  127a 

JVol  expedient  to  extend  the  term  to  conditional  limitations    §  152 
Distinguished  from  others,  and  vice  versa. 

Danger  of  confounding  the   second,  third,  and  fourth  kinds 
of  limitations  of  springing   interests  with  contingent   re- 
mainders .  .  .  •        §  122 
See  Remainders — Contingent  Remainders. 

Limitations  of  vested  interests  subject  to  a  chattel  interest, 
must  be  distinguished  from  the  second,  third,  fourth,  and 
fifth  kinds  of  limitations  of  springing  interests  §  124a 

See  Vested. 

Cases  of  an  estate  tail  by  implication  simply,  or  both  by  im- 
plication and  by  analogy  to  the  rule  in  Slielley's  case,  ivith 
a  vested  remainder  over,  distinguished  from  cases  of  a  life 
estate,  with  a  limitation  over  of  a  springing  interest.  See 
Part  II.  Ch.  \1, passim. 
See  Conditional  Limitation  .  .      §  263 — 275 

Reversion. 
SUCH, 

Supplied  .  .  .  .  •        §  725 

Not  supplied  .  .  .  .  §  691 

See  Issue. 
SUPPORT  of  contingent  remainders, 

Contingent  remainder  for  years  needs  no  preceding  freehold  §  765a 
Contingent  freehold  remainder  must  be  supported  by  a  preceding 
freehold  .  .  .  .  .        §  757 

It  must  be  originally  preceded  by,  and  must  continue  to  be 
preceded  by,  a  vested  freehold  capable  of  enduring  till  the 
vesting  of  the  remainder  .  .   §758 — 765a 

Not  necessary  that  the  preceding  estate  should  be  vested  in  pos- 
session. .  .  .  .  •      §  765b 
A  preceding  estate  is  not  necessary  where  the  legal  estate  is  in 
trustees.                     .                  .                  .                  .  §  765c 
SURVIVOR— Survivorship, 

iJevise  to  two,  and  the  survivor,  and  the  heirs  of  such  survivor  §  lS7a 
Bequest  over,  in  case  of  death  without  issue,  to  the  survivor 

—  without  words  of  limitation  .  .  §  553 

—  with  words  of  limitation  .  .  .    §555 
To  what  7?crzW  it  refers                    .                  .             §  284,  note  (6) 
Where  survivorship  would  have  been  implied  in  the  words  intro- 
ducing a  vested  remainder          .                  .                   §  318 — 350 

TERM  of  years, 

Definition  of  a  legal  interest  for  a  term  of  years         .  §  66 

Definition  of  an  equitable  interest  for  a  term  of  years         .        §  68 
Freehold  after  a  Icrm  o[  ye^va  .  .  §119 — 124a 


INDEX.  -IST 

TERM  of  years, — continued. 

See  Vested  .  .  .  .     §  2 15— 257 

Personal  Estate. 
Quasi  Remainders. 
THEN, 

Not  denoting  a  condition  precedent,  but  referring  only  to  tlie  pos- 
session or  enjoyment  ...  §  3 IG 
TILL, 

Denoting    a   special  or  collateral    limitation    of    the    direct   kind 

§  31—5,  4 1 
TIME  for  vesting 

—  of  contingent  remainders  .  •  .         §"02 

—  of  other  executory  interests  .  .  §  "OG — 8 
TRANSMISSION  of  executory  interests, 

Division  of  executory  interests  with  reference  to  the  capacity  of 

transmission  existinfj;  at  the  time  of  their  limitation  §  742 

Transmissible  in  all  events         .  .  •         §  ''^^ 

Untransmissible  ...  §  744 

Transmissible  in  some  events  only  .  .         §  745 

Division  of  executory  interests  with  reference  to  the  capacity  of 

transmissioii  existing  at    the  death    of  the  persons   entitled 

thereto  .  .  •  •  .  §  74G 

Transmissible      .  .  .  .  §  ''"17 

Untransmissible  .  .  .  •         §  '^'^^ 

TRUSTEES, 

Trust  estate  io  preserve  contingent  remainders  .  §  781 

Forms  an  exception  from  the  first  class  of  contingent  remain- 
ders      .  .  .  .  .  §  258 
Mere  right  of  entry  is  sufficient  to  preserve  contingent  re- 
mainders              .                 .                 .                 •            §  "'^'^ 
Where  the  appointment  of  a  trustee  is  an  indication  of  vesting  §  345 
UNTIL, 

Denoting    a   special   or   collateral   limitation   of    the   direct   kind 

§  34—5,41 
UPON, 

Devise  or  bequest  to  v^.  upon  &c.  .  .    §  285 — 6,  346 

USES, 

Shifting    .  .  .  .  .  §  150 

Springing         ....  §  127a,  150,  152 

VESTED  INTERESTS,  generally. 

Vested  Interests  in  general  divided  and  defined. 

Division             .                  .                  •                  •                  .  §  75 

Two  modes  of  defining  vested  and  executory  interests  §  75a 
Definition  of  vested  interests  with  reference  to  the  right  of  posses- 
sion or  enjoyment, 

—  of  a  vested  interest  or  actual  estate,  §  7G.     See  also  §  48 

—  of  a  y;>T.?c/<7  vested  interest         .                  .             .  §  77 

—  of  a/i</«re  vested  interest                  .                  .  §78 
When  an  estate  is  vested  in  possession         .               .  §  79 

in  right  or  interest         .         §  SO,  81 


4SS  INDEX. 

VESTED  INTERESTS  generally— co??^m?/eo'. 

Dcfinilion  of  vested  interests  wilhout  reference  to  the  right  of  pos- 
session or  enjoyment, 

—  of  a  vested  interest  or  actual  estate         .  .  §  87 

—  of  a  p)-esent  vested  interest  .  .  §,88 

—  o[  a  future  vested  interest  in  lands  or  tenements  §  89 

in  chattels     .  .       §,  89a 

Are  most  correctly  defined  without  reference  to  the  right  of  pos- 
session or  enjoyment        .  .  .  .         §  91 
Remarks  on  the  distinction  between  n  present  vested  interest  and  a 
future  vested  interest      .                 .                 .  •       §  ''Sa 
Vesting  inchoately  or  inceptively               •                  .  §,82 

Of    Limitations    of    Present  Vested    Interests,   when 
considered    with    reference    simply    to    the    posses- 
SION OR  Enjoy:ment,  or  both. 
Limitations  of  interests  vested  in  possession,  or  in  enjoyment,  or 
in  both         .  .  .  .  .  Hid 

Limitations  of  vested  interests 

—  in  real  estate,  subject  to  a  term  for  years         .  §  Hie 

—  in  real  or  personal  estate,  subject  to  a  chattel  interest  of 
vncertaiii  duratiou  .  .  .  §  mf 

—  in  real  or  personal  estate,  subject  in  any  other  way  to  a 
suspension  of  the  possession  or  enjoyment,  or  both    §  1  llg 

Of  the  construing  an   Interest  to  be  Vested  rather 
THAN  Contingent,  according  to  the  general  Rule. 
The  Rule  stated,  and  the  reasons  thereof  explained. 

The  general  i^ule  as  commonly  stated         .                 .  §  200 

as  m,ore  precisely  stated          .  §  201 
Reasons  thereof;  namely, — 

1.  Dcstructibility  of  contingent  interests  .     §203 

2.  Abuse  of  property  by  the  heir  at  law  in  the  interim  §  204 

3.  Unsettled  state  of  the  family  whose  interest  is  con- 
tingent ...  •  §  205 

4.  Want  of  provision  for  children  of  parents  dying  under 
age  of  21,  to  which  vesting  is  postponed         .        §206 

Weight  of  this  reason  may  be  doubted         .       §  207 

5.  Want  of  provision  for  children  in  other  cases  where  the 
interest  is  contingent  on  account  of  the  person        §  208 

6.  Want  of  maintenance  for  the  persons  themselves,  in 

certain    cases,   to    whom    contingent    interests    are 
given  .  .  .  .       §  209 

7.  Leaning  in  favour  of  the  free  enjoyment  and  aliena- 

tion of  property  ...  §  209a 

Jipplication  of  the  rule  to  limitations  in  favour  of  a  person  of  a 
given  character. 

When  an   ultimate   limitation   in  favour   of  an  heir  creates 

a  vested  interest  .  .  §  210, 211 

a  contingent  interest  .  •.  §  212 

Devise  to  a  person  by  any  other  description  denotes  a  person 

sustaining  such  description  at  the  testator's  death  §  214 


INDEX.  489 

VESTED  INTERESTS  gencvaWy—crmlhiuei/. 

j^pplicdtiun  of  the  rule  to  legacies  and   portions  apparently  de- 
pending on  SHrvivin<; parcnt.'i,  as  a  condition  i)reccdent. 
See  PoKTioNs. 

Application  of  the  rule  to  subseqiietit  interests  limited  after  in- 
terests depending  on  a  condition  precedent  .  §  222a 
Present  Vested  Interests  subject  to  a  Term  of  Years, 

DISTINGUISHED    FIIOM    VeSTED    AND    CONTINGENT    REMAIN- 
DERS, AND   FROM   SPKINGING   INTERESTS. 

A  freehold  after  a  term  may  be  termed  a  remainder,  so  far  as  re- 
gards the  possession,  with  or  without  the  beneficial  interest 

But  it  is  7int  a  remainder,  properly  so  called  .  §  246 

But  is  either  a  present  vested  interest  subject  to  a  term ;  or 

else  a  sjjringing  interest  .  .  §  247 

Where  a  iVeeliold  afterm  a  term  is  a  present  vested  interest, 

subject  to  a  term         .  .  .  .        §  248 

—  where  it  is  limited  on  the  effluxion  of  years         .        §  251 

—  where  it  is  limited  on  the  dropping  of  a  life  or  lives,  §  252 
Freeholds  after  a  term  are  called  rcjnainders  by  Fearne,  in 

some  sense;  and  assunied  to  be  such  in  several  cases,  m 
some  sense  at  least.  But  this  assumption  was  extra-judi- 
cial. And  if  Fearne  assumes  them  to  be  remainders,  pro- 
perly so  called,  this  would  appear  to  be  an  oversight,  §  253 
The  same  remark  applies  to  Butler  .  .  §  254 

Where  a  freehold  after  a  term  is  a  springing  interest       §  255 
—  where  it  is  limited  on  the  ejjluxion  of  years,  ^\\&'n\ 
other  cases  .  .  .  §  25G — 7 

Certain  other  Cases  of  Vested  Interests,  distinguished 
FROM  Executory  Intersts. 
Cases  where  an  uncerlaiti  event  is  made  a  part  of  the  description 
of  the  devisee  or  legatee 

I.  Where  an  uncertain  event  forms  part  of  the  original  de- 
scription .  .  .  .  ^2S1 

II.  Where  an  uncertain  event  forms  an  independent  super- 
added description  .  •  •         §  ~S2 — 4 

Cases  where  a  devise  or  bequest  has  reference  to  a  future  age  or 
an  uncertain  event  which  docs  ^OTfn'm  part  of  the  description 
of  the  devisee  or  legatee,  and  there  is  no  indicatiu>i  (f  vesting. 

I.  Where  the  conditional  words  arc  when,  as  soon  as,  at, 
upon,  from  and  after  .  .  §  285 — 6 

The  doctrine  of  the  Civil  Law  .  .         §  287 — 9 

II.  Wiiere  the  conditional  words  are  if,  in  case,  provided,  §  290 

1.  In  the  case  of  legacies         .  .  .  §  291 

(1)  payable  out  ofrealcs[ii\e  .                  §  292 

{2)  \rdyi\h\e  out  of  personal  esliitc  .          §293 

The  doctrine  of  the  Civil  Law                .  §  294 — 5 

2.  in  the  case  oi  real  estate, 

(1)  Where  the  word r p?'0vided-''  follows  the  devise, 
and  there  is  no  limitation  over  .  §  296 


4  90  INDEX. 

VESTED  INTERESTS  genersiWy—contimied. 

(2)  Where  the  word  "provided"  follows  the  devise, 
and  there  is  a  hmitation  over  .  §  297 

(3)  Where  the  word  "  if"  or  the  words  "  in  case" 
follow  the  devise  .  .        §  298 — 9 

Distinction  between  the  import  of  the  words  "if"  and  "  in 
case,"  and  the  import  of  the  words  "when,"  "as  soon  as," 
"at,"  "upon,"  "  from  and  after  "  .  .        §300 

Cases  where  the  devise  has  reference  to  a  time  or  event  certain, 
and  there  are  no  indications  of,  or  grounds  for  supposing,  an  im- 
mediate vesting  .  .  .  .  §  301 
Cases  where  the  devise  or  bequest  has  reference  to  a  future  age, 
time,  or  event,  j:iOT  forming  part  of  the  original  description  of 
the  devisee  or  legatee;  and  there  are  indications  of  or  grounds 
for  supposing  an  immediate  vesting. 
General  propositio7i          .                  .               .                 •  §  ^^^ 

I.  Where  tlic  time  is  not  annexed  to  the  gift  itself  §  310 

1.  Application  of  the  distinction  to  legacies  payable  out 
of  personal  estate  .  .  .  §311 

Which  are  governed  by  the  Civil  Law  §  311a 

The  doctrine  of  the  Civil  Law  .  .         §312 

Observations  on  the  foregoing  rule, 

(1)  With  reference  to  cases  where  there  is  no  gift 
but  in  a  direction  to  pay,  &c.  .  §  314 

(2)  With  reference  to  cases  where  the  future  period 
is  annexed  both  to  the  payment,  jjossession,  or 
enjoyment,  and  to  the  gift  itself  .  §  315 

(3)  With  reference  to  the  character  of  the  distinc- 
tion, which  is  commonly  disapproved  of         §  316 

But  is  in  reality  founded  on  one  among  many  indi- 
cations of  the  testator's  intention  .  §  317 
Quotation  from  Voet             .                 .               .         §  318 

2.  Application  of  the  distinction  to  real  estate  §  319,  320 

3.  Non-application   of  the  distinction  to  charges  on  real 
estate  .  .  •  •         §  321 — 2 

Non-application  of  the  distinction  to  charges  on  real 
estate,  is  no  reflection  against  its  soundness    §  323 
Reasons  for  the  non-application  thereof;  namely, 

(1)  Non-existence  of  the  money  before  the  future 
period  ...  §  324 

(2)  Favour  shown  to  the  heir         .  .         §  325 

(3)  The  connnon  law  is  adhered  to  in  the  case  of 
lands  .  .  .  .  .        §  326 

4.  Application  of  the  distinction  to  the  case  of  legacies 
charged  on  a  mixed  fund  .  .  §  327 

II.  Where  there  is  a  gift  of  the  tuhole  intermediate  income 

§  328—9 
Doctrine  of  the  Civil  Law  .  .         §  330 

Reasons  for  the  rule;  namely, 

1.  Giving  of  interest  shows  intention  to  separate  the 
legacy   from  the  residue  .  §  332 


INDEX.  491 

VESTED  INTERESTS  generally— con/mwet/. 

2.  Intcnnediale  income  is  given  in  respect  of  a  vested 
interest  in  the  property  itself  .     §  333 — 5 

3.  Ikit  this  construction  of  a  gift  of  intermediate 
income  not  being  one  that  arises  from  necessary 
implication,  such  gift  is  not  sufficient  to  vest  an 
interest,  apart  from  the  leaning  in  favour  of  vest- 
ing ...  §  336-7 

And  as  the  leaning  in  favour  of  vesting  is  counter- 
poised by  other  considerations  in  the  case  of  charges 
on  real  estate,  the  gift  of  the  intermediate  income 
is  insufficient  to  vest  such  charges  .         §  338 

But  if  a  legacy  charged  on  real  estate  is  expressly  directed 
to  vest  before  the  day  for  payment,  it  will  so  vest    §  339 

III.  Where  executors  are  onpoivercd  to  make  advances  out  of 
portions  .  •  •  •  §  340 

IV.  Where  the  postponement  is  apparently  from  necessily,  or 
for  the  accomplishment  of  some  special  purpose  imco)inected 
ivith  a  suspension  of  the  properly  or  ownership         §  3  10a 

V.  Cases  of  residuary  bequests  on  marriage    .  §  34 1 

VI.  Cases  of  particular  bequests  or  devises  where  the  period 
is  an  uncertain  one  other  than  that  of  the  attainment  of  a 
given  age  .  •  •  •         §  342 — 3 

Vil.  Where  the  event  of  attaining  a  given  age,  is  introduced 
by  toords  importing  a  contingency,  and  constituting  a  con- 
dition precedent  ...  §  344 
VIII.  Where  a  trustee  is  appointed  for  the  intermediate  time 

§  345 
Cases  where  the  devise  has  reference  to  an  event  lohich  would  be  im- 
plied by  the  words  introducing  a  vested  remainder      §  347 — 350 
Effect  of  «  limitation  over. 

I.  Where  the  condition  of  attaining  a  certain  age  is  introduced 
by  the  words  "  if  '■  in  case''  ''provided,''  and  it  follows 
the  devise,  and  there  is  a  devise  over  simply  in  the  event  of 
the  non-attainment  of  that  age  .  .         §  351 

Observations  on  the  preceding  cases,  showing  X\\e  pj-inci- 
jile  of  the  distinction  between  those  cases  where  the 
condition  is  the  attainment  of  a  certain  age  and  those 
where  the  condition  is  of  another  kind  §  351a 

Effect  of  the  devise  over  in  the  above  cases      .          §  352 
The  reason  why  the  interest  of  the  prior  devisee, in  cases  fall- 
ing within  the  above  rule,  is  a  vested  interest      §  353 — 4 
Cases  where  the  prior  devisee  was  held  to  take  a 
vested  interest  on  account  of  the  devise  over    §  355 
But  these  cases  are  not  to  be  relied  on  §  356 

The  interest  of  the  prior  devisee  must  have  been  held 
contingent,  if  there  had  been  no  devise  over;  and 
the  devise  over  could  not  render  it  vested        §  357 

II.  Effect  of  a  devise  over  si?nply  on  the  non-happening  of  the 
event  on  which  the  prior  devise  is  apparently  made  contin- 
gent        .  .  .  .  .  §  35S 


192  INDEX. 

VESTED  INTERESTS  geneYa.\\y—co}itmued. 

1,  Such  a  devise  over  docs  not  afford  a  necessary  pre- 
sumplion  that  the  prior  devise  is  contingent  §  359 

2.  But  still  it  affords  some  presumption  thereof  §  3G0 
Or,  at  all  events,  it  affords  no  ground  for  supposing  such 

prior  devise  to  be  vested         .  .  §  361 

III.  Devise  over  to  s^irvivors  of  a  class  affords  some  presump- 
tion of  vesting       ....         §  362a 

IV.  Where  a  prior  devise  is  apparently  made  contingent  on 
the  attainment  of  a  certain  age,  and  there  is  a  devise  over 
ill  case  of  death  under  that  age  without  issue,  after  an 
intermediate  devise  to  the  issue    .  .  §  363 

V.  Where  a  similar  prior  devise  is  made,  with  a  similar  devise 
over,  but  there  is  no  inter  rued  iate  devise  to  the  issue 

§  364—5. 

VI.  Where  tlie  attainment  of  a  certain  age  forms  part  of  the 
description  of  the  legatee  or  devisee  .  §  366 

Yi^eci  oi  subsequent  explanatory  ivords         .  .         §  366a 

Effect  of  a?i  allowance  for  maintenance. 

I.  Where  the  tvhole  intermediate  income  is  given,  and  there  is 
no  limitation  over  .  .  .  §  367 

II.  Where  there  is  a  limitation  over         .  .  §  368 

III.  Vi here  jyart  only  of  the  intermediate  income  is  given  §  369 
Effect  of  a  power  of  appointment  over  real  estate  §  369a 
Effect  of  a  power  of  appointm,ent  over  personal  estate. 

I.  Gifts  to  a  class,  subject  to  a  power  of  appointing  among 
them  generally  .  .  •         §  370 

1.  Where  no  valid  appointment  is  made,  or  only  a  partial 
appointment  .  .  .  §  371 

2.  Where  a  valid  appointment  is  made  of  the  whole    §  372 

II.  Where  the  power  authorises  a  selection,  and  there  is  a 
lim,itation  over  in  default  of  apjjointinent  .         §  373 

III.  Where  the  gift  is  to  such  of  a  class  as  a  person  shall  ap- 
point, and  there  is  no  limitation  in  default  of  appointment 

§  374 
VESTED  REMAINDER.     See  Contingent  Remainders. 

WHEN, — Denoting  a  condition  precedent                  .  §  285 — 6 

Not  denoting  a  condition  precedent,  but  referring  only  to  the 

possession  or  enjoyment      ,                 .  .         §346 

WHILST, — denoting  a  special  or  collateral  limitation  §  35,  41 

WIFE, — Devise  to  testator's  wife,  if  she  shall  so  long  continue  his 

widow,  &.C.              .                  .                  .  •         §  260 

WORD,— Supplied            .                 .                 .                .  §243 

Not  supplied             .                 .                .  •         §  ^^^ 


THE  END. 


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